General protections’ claims not involving a dismissal; the process

There does not appear to be any time limit for making an application in relation to a general protections claim not involving a dismissal. There is a 21 day time limit for general protections’ claim involving dismissal, which is enforced reasonably brutally for both unfair dismissal (Fair Work Act, sec 394) and unlawful dismissal , (technically a general protections claim in this context) (sec 366) , but no apparent time restriction upon the making of a general protections claim not involving a dismissal (sec 372).

I acknowledge that it is often argued by some members of the legal profession and academics that the time limit is the same as is provided for by the Limitation Acts of the States of Australia, for example 6 years in Western Australia; however I have yet to be convinced of that by a coherent legal argument. The Fair Work Commission general protections benchbook does not appear to argue that there is a time limit at all; see page 148 of it.

There are two other material distinctions between a general protections claim involving a dismissal and one which does not involve a dismissal.

In the case of the former, the Fair Work Commission can convene a conciliation conference to deal with the dispute irrespective of the views of the parties but with the latter can only do so if the parties agree. Secondly, conciliation conferences for general protections claims involving a dismissal are conducted by conciliators of the Fair Work Commission however those not involving a dismissal are for some strange reason conducted by members of the Commission, typically a much slower process.