Sometimes, you just can’t summarise a decision of the Fair Work Commission. Earlier this month, a Deputy President issued a relatively succinct decision. The identity of the parties is not relevant, so I’ll substitute their names with “employer” and “employee”. In any event, the decision reads:
“Anyone wanting insight into the phenomenon of unmeritorious claims in the Fair Work Commission may wish to consider the case of [employee], whose application under s 365 of the Fair Work Act 2009 I dismissed ex tempore earlier today. During a casual shift at [employer], [employee] was told by a coworker that (and I paraphrase) the cleft of his bottom was protruding from his trousers. It was suggested, in rude terms, that he cover up. [Employee] was upset. His feelings were hurt. He lodged an application alleging that he had been dismissed in breach of his workplace rights under Part 3-1 of the Act. He wanted compensation.
What dismissal? That was what [employer] wanted to know. It said that [employee] continued to work shifts after lodging his claim and that he later stopped turning up for work. I so find. [Employee] was not dismissed. He had no standing to make the application. This case had nothing to do with dismissal, or with Part 3-1 of the Act. It was evidently a speculative claim made in pursuit of a monetary settlement that would spare [employer] the nuisance of defending it. I was unable to put this to [employee] because he ignored my direction to attend the telephone hearing. I note that this was [employee’s] fifth application in two years.
Unmeritorious claimants have little to lose. This is unfair to respondents who have no case to answer. It is unfair to applicants with cases of substance waiting their turn to be heard. The Act allows costs to be ordered in some cases, but very often there are no compensable costs, only wasted time. There is no effective disincentive for speculative claims, and so they come, in great numbers, compounding the Commission’s burgeoning caseload.”
The Commission’s caseload is burgeoning. In November 2025, the President noted that general protection applications for Q1 of the 2025-2026 year were up 57% against the 3-year average, and were on track to reach 8,000 applications for the year. While the maths isn’t complex, if you think about that from the Commission’s perspective, it:
Equates to an average of 30 general protection applications being filed every business day.
Requires 12,000 conciliation hours to be scheduled across the year (at the standard rate of 1.5 hours per matter).
Would take one member 2,000 days (or almost 7.7 years) to conciliate one year’s worth of applications (assuming they did nothing other than conduct conciliations, and never took leave). By extension, it would therefore require the Commission to dedicate almost 20% of its Members to doing nothing other than conciliate general protection applications to clear each year’s general protections workload, and that’s without considering those applications where hearings are required to deal with jurisdictional objections.
With limited options, the Commission appears to be adapting through information and process changes. For example, the Commission’s General Protections page lists examples of what is not adverse action, citing:
offering a lower salary to a job applicant because they have less experience;
deciding not to hire a potential employee because they do not have a driver’s licence and the job requires them to drive;
making a role redundant when it is genuinely no longer required;
standing down an employee in circumstances where stand down is allowed under the law or the employment contract, or
reasonable management action to address performance concerns, for example, giving a worker feedback or putting them on a performance improvement plan.
Whether an unmeritorious applicant will prefer the Commission’s information over the wider advice of a free AI platform is yet to be seen, but in my experience disappointed people are often driven more to focus on answering the question of “how”, rather than “if”.
In any event, when a person clicks through to the next page of the Commission’s website to begin the application process, they’re provided with a volume of information about what a general protections claim is, and what is going to happen. It makes clear that a general protections application is not the same as an unfair dismissal application and the Commission’s role is limited to dispute resolution. All useful information if it’s read.
If, after scrolling through the page, the person wants to proceed to make a claim, they now need to click through a three-question, multiple-choice eligibility questionnaire which examines how the employment ended, why the person “thinks” they were dismissed, and when their employment ended. If selected, many of the options inform the person they cannot make an application. At the same time, nothing prevents the person from changing the selection until they find the answer that allows them to proceed. After navigating the three questions, the person must now click five acknowledgments.
That they are staring legal action by making an application.
They will need to pay an application fee.
Providing false or misleading information is a criminal offence and may result in referral to the Australian Federal Police.
The Commission will not decide who is right or wrong, but will try to help both side agree on a way to resolve the dispute.
If the dispute is not resolved, the next steps is taking the case to court.
An application is then required to be made using an online form, or a pdf version using the text box function. Presumably to test an applicant’s resolve, a word version of the form is not available.
Once the application has been filed, the dispute resolution experience is also changing.
No doubt as an unavoidable consequence of the buckling caseload, there are growing wait times for the dispute resolution process to begin. In my recent experience, it’s not uncommon to now wait for up to 3 months after the application being filed.
Dispute resolution is taking a different form. Whereas general protections applications have historically been conciliated by a member of the Commission through a traditional conciliation process, it’s now common for dispute resolution to:
be conducted by a staff conciliator;
be either an abbreviated conciliation process, or an offline email exchange of offers between the parties, copying the conciliator.
be confined to the exchange of offers in a short, joint session conciliation, with no time given to discussion of a party’s position and without the traditional ferrying of offers between private conferences.
The Commission has also begun refusing permission for parties to be represented in the dispute resolution process.
The Commission has very few levers available to it, but whether these changes will begin to have a discouraging effect on those making unmeritorious claims is yet to be seen. I don’t like sounding pessimistic, but I don’t think anyone should be holding their breath.
