“Sham contracting” occurs where an employment relationship (contract of service) is disguised as an independent contracting arrangement (contract for services). Sham contracting may be undertaken...
Employees who are ill or injured must be carefully managed throughout the employment life cycle including during recruitment, while employed and if their employment is terminated. During recruitment, the...
If an employer fails to keep records or provide pay slips as required under ss 535–536 of the Fair Work Act 2009 (Cth) (FW Act) (and Pt 3.07 of the Fair Work Regulations 2009 (Cth) (FW Regulations...
Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides broad-ranging protection for employees, independent contractors and employers against “adverse action” (see Guidance Note: Who can...
The “general protections” provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) contain various protections for employees, independent contractors, employers and other persons. Some...
Best practice employers will take steps to ensure acceptable behaviour in the workplace. If applicable standards of behaviour are not met, employers may need to manage employees' conduct, which includes...
This guidance note outlines the process for bringing and defending general protections claims in the Fair Work Commission (FWC) and in the Federal Court of Australia and Federal Circuit and Family Court of Australia. It does not deal with the substantive requirements of a general protections claim and refers only in passing to the remedies available to a successful claimant.
Authored by Catherine Dow, Lawyer and Jacqueline Parker, Special Counsel, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.
See Guidance Notes: What is a “workplace right”?, Who can make an adverse action claim?, Are there general protections for engaging in industrial activities? and General protections — What remedies are available?
The Fair Work Act 2009 (Cth) (FW Act) establishes separate frameworks for dealing with:
Broadly speaking, if the applicant alleges that he/she has been dismissed from employment, the parties must attempt to resolve the dispute in the FWC before a general protections application can be made to the court, whereas a non-dismissal claim can proceed straight to court unless the parties agree for the FWC to deal with the dispute. An exception applies if the applicant is also seeking an interim injunction ie to prevent the dismissal or order reinstatement, in which case the matter should go directly to court. These procedures are discussed in more detail below.
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