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General protections

Assessment criteria

For legal aid to be granted to assist an applicant in proceedings for contravention of the Fair Work Act 2009 (Cth) where there has been a breach of general protections, the following tests must be satisfied:

Documentary requirements

Applications received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • a completed and signed Legal Aid Queensland application form
  • proof of income and assets (refer to the means test)
  • a copy of the general protections application lodged with the Fair Work Commission (if applicable).

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with the employment law – general protections information request and attach:

  • a copy of the general protections application lodged with the Fair Work Commission (if applicable).

The following documents are retained on file but may be requested by Legal Aid Queensland:

Interpretation

National System Employee

For a full definition for a national system employee and employer, please refer to section 13 and 14 of the Fair Work Act 2009 (Cth).

For the purposes of this guideline Legal Aid Queensland may consider an applicant for aid to be a national system employee if they are employed or usually employed:

  • by a constitutional corporation (most businesses that are companies are constitutional corporations, however, charitable or not-for -profit organisations it may not be a constitutional corporation)
  • by the Commonwealth or a Commonwealth authority
  • as:
    • a flight crew officer
    • a maritime employee
    • a waterside worker

For the purposes of this guideline Legal Aid Queensland do not consider an applicant for aid to be a national system employee if they are employed or usually employed by the State or local government.

The time limits for lodgement have been/can be met

For legal aid to be granted, the applicant must have either lodged their application for general protections or make an application for legal aid with enough time for an application for general protections to be filed within the time limits for lodgement.

The time limits for lodgement are as follows:

  • An application to deal with a general protections dismissal dispute must be lodged by the employee within 21 calendar days after the day the dismissal took effect.
  • Applications where the employee has not been dismissed can be lodged up to six years from the day the alleged contravention occurred.

Workplace rights

A person (such as an employer), must not take any adverse action against another person (such as an employee), because that person has a workplace right, has exercised or not exercised a workplace right or proposes to exercise or not exercise that workplace right.

Workplace rights include:

  • receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
  • commencing or participating in a process or proceeding under a workplace law (such as the Fair Work Act), or instrument (such as a modern award or enterprise agreement), such as taking court action
  • being able to make a complaint or enquiry about one’s employment.

Other protections

Discrimination

An employer must not take adverse action against an employee (or prospective employee) because of their:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin.

Temporary absence – illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury of a kind prescribed by Regulation 3.01 of the Fair Work Regulations 2009.

Coercion

A person must not take or organise any action against another person, or threaten to do so, with the intent to coerce them, or anyone else, to:

  1. exercise or not exercise a workplace right
  2. propose to exercise or not exercise a workplace right, or
  3. exercise or propose to exercise a workplace right in a particular way.

A person must also not knowingly or recklessly make a false or misleading representation about another person’s workplace rights, the exercise of those rights, or the effect of exercising those rights.

Sham contractor arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.

Special circumstances of the applicant priority

For the purposes of this guideline Legal Aid Queensland may consider an applicant to be disadvantaged if they:

  • have a language or literacy problem;
  • have an intellectual, psychiatric or physical disability;
  • live in a remote locality making it difficult to obtain legal assistance;
  • would otherwise be at risk of social exclusion; or
  • are a child.

In relation to employment matters, those at risk of social exclusion are identified as:

  • Applicants with family responsibilities (pregnant women, parents)
  • Youth applicants particularly those in casual employment or who are serving apprenticeships.

Allocation of a solicitor

All employment matters are to be allocated to an employment lawyer within the Civil Law team of Legal Aid Queensland.

Grant(s) of aid

The initial grants of aid available are as follows:

  • CEM1 - solicitor to prepare and lodge an application with the Fair Work Commission (this grant of aid is only available where an application for general protections has not been filed).
  • CEM2 - solicitor to attend prepare for and attend on conciliation conference, respond to jurisdictional issues (if raised by employer) and draft an agreement reached at conciliation conference.

Extension(s) of aid

Solicitor

The following extensions of aid are available for solicitors:

  • CGP4 - prepare for and attend on day 1 of hearing at the Federal Court
  • CGP6 - attend an additional day of hearing at the Federal Court
  • CGP8 - prepare for and participate in arbitration in relation to general protection issues following unsuccessful conciliation conference

Counsel

The following extensions of aid are available for counsel:

  • CEM3 – provide opinion on an employment issue
  • CGP5 – prepare for and attend on day 1 of hearing at the Federal Court
  • CGP7 – attend an additional day of hearing at the Federal Court

Retrospective contributions

Grants of legal assistance for these types of matters may be approved on the condition that the applicant will pay a retrospective contribution.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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