General protections — What remedies are available?

Authored by Nick Le Mare, Partner, and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.

This guidance note outlines the remedies available from the Fair Work Commission (FWC) and the Federal Court or Federal Circuit and Family Court of Australia in respect of general protections claims.

See also Guidance Notes: What is a “workplace right”?, Who can make an adverse action claim?, Are there general protections for engaging in industrial activities? and How is an action to enforce a general protection initiated or defended?

What are the FWC remedies available?

The FWC can assist the parties to secure an agreed resolution of a general protections dispute through a conference convened in accordance with s 365 (in cases involving dismissal) or s 372 (in other cases) of the Fair Work Act 2009 (Cth) (FW Act). The Commission can conduct the conference as it wishes, by conciliating, mediating, making a recommendation or expressing an opinion, but it cannot impose an outcome on the parties: ss 368(1), note and 374(1), note 2, FW Act.

If the parties are unable to resolve the dispute by conference, the FWC will issue a certificate stating that it is satisfied that all reasonable attempts to resolve the dispute have been unsuccessful: ss 368(3) and 375, FW Act. The aggrieved party may then make a general protections application to the courts seeking any of the orders in ss 545 and 546 of the FW Act (see below).