How is an action to enforce a general protection initiated or defended?

The FW Act establishes separate processes for dealing with alleged contraventions of Pt 3-1 that involve the dismissal of an employee and those that do not.

For general protection dismissal claims, the person concerned (or union that is entitled to represent their industrial interests) must make an application to the Fair Work Commission (FWC) to deal with the dispute: s 365.

After providing the respondent with an opportunity to respond, the FWC will try to resolve the dispute by conciliation or mediation but it cannot impose an outcome on the parties.

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. Alternatively, the parties may agree for the FWC to arbitrate the dispute: s 369. An arbitrated decision of the FWC is legally binding and may be enforced through the courts.

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.

See How is an action to enforce a general protection initiated or defended?