Where an alleged contravention of Pt 3-1 involves the dismissal of an employee, s 365 of the FW Act requires that the person concerned (or a union that is entitled to represent their industrial interests) apply to the Fair Work Commission (FWC) to deal with the dispute. Such application must be made within 21 days of the dismissal (extendible in exceptional circumstances). [Note that prior to 1 January 2013, the time limit for general protections claims was 60 days]. After providing the respondent with an opportunity to respond, the FWC will try to resolve the dispute by conciliation or mediation but cannot arbitrate unless the parties expressly ask it to do so.
If the FWC is unable to resolve the dispute, then it must issue a certificate to that effect, and the applicant can initiate proceedings in either the Federal Court or the Federal Circuit Court and seek relief as outlined above.
It is not obligatory to ask the FWC to deal with alleged contraventions that do not involve dismissals, although it is possible to ask it to do so. Where an applicant requests the assistance of the FWC in such cases then it can attempt to resolve the matter in conference provided that all parties agree to its doing so. If the matter is not resolved than the applicant can seek relief in an appropriate court in the same way as in dismissal cases. Where the applicant chooses not to refer a dispute to the FWC, they can apply directly to the Federal Court or the Federal Circuit Court.
Section 360 of the FW Act has the effect that in all cases involving alleged contraventions of Pt 3-1 , apart from applications for interim injunctions, where it is alleged that a person took action for a particular reason or with a particular intent then “it is presumed, in proceedings arising from the application, that the action was…taken for that reason or with that intent, unless the person proves otherwise”.
This reversal of the normal rules as to onus of proof is extremely important, and many employers who run foul of the general protections do so because they are unable to discharge the reverse onus.
See Fair Work Commission / court processes for dealing with general protections claims.