Sometimes employers and employees disagree about things at work. Sometimes these are just a difference of opinion or artistic vision – but if the dispute relates to workplace rights, entitlements or conditions, there may be government agencies that can help you resolve the issue.
This page sets out some of the more common types of employment disputes and explains where you can go for help to try to resolve them.
Try to resolve it in the workplace first
The first step is to always try and resolve the issue directly between the employee and the employer. This is how most issues are resolved.
In fact, some legal processes require that you try first before they can help.
There are some excellent free resources around to help you work out a solution to the issue.
Keep learning:
Check for a dispute resolution clause
If you are covered by an award or enterprise agreement, it will probably have a dispute resolution clause.
A dispute resolution clause sets out the procedure that must be followed if an employee and employer disagree about something in the award or agreement.
The clause is likely to include:
- a description of the process for dealing with disputes
- that the parties need to try to work it out between themselves before taking it further
- if that doesn't work, that the disputing party may start a legal process. A legal process may start with mediation or similar. If no agreement can be reached, a tribunal or court may make a formal decision.
Depending on the issue, a court or tribunal may require that you have followed the process in your dispute resolution clause before they will deal with it.
Getting help with common disputes
The first step in resolving an employment dispute is understanding what the dispute is about.
Some common types include disputes about:
- fixed term employment contracts
- the right to disconnect
- flexible working arrangements
- pay, entitlements and conditions in awards and enterprise agreements
- workplace rights and discrimination.
If the dispute is about a term in an employment contract that is separate from these things, you may need to get legal advice or help.
Fixed term employment contracts
There are rules in the national employment system about when you can use fixed term contracts.
Except for casuals, the limits for fixed term employment contracts are:
- Maximum 2-year contract period — A fixed term contract can’t be for a period of more than 2 years, including renewals and extensions.
- No more than 2 consecutive contracts — An employee can’t have more than 2 consecutive contracts for the same or similar work, except in certain circumstances.
There are some exceptions where the limits don’t apply, including in relation to the Live Performance Award.
The Fair Work Ombudsman has information about fixed term contract employees.
The Fair Work Commission can deal with disputes about fixed term contracts. Disputes can be about current or future contracts. They can be about issues such as:
- the limits
- the exceptions
- contract renewals
- contract extensions
- anti-avoidance provisions (this means that employers can’t do certain things to purposely avoid the limits).
The Fair Work Commission can generally only deal with a dispute if the employee and employer have tried but haven’t been able to resolve the dispute themselves.
The law protects employees from being adversely affected because they have, or wish to exercise, their rights relating to fixed term contracts.
For example, if an employee complains about being offered an unlawful fixed term contract, the employer can’t refuse to hire them for making that complaint.
These laws are called general protections. Learn more about general protections disputes below, or keep learning about employee protections at the Fair Work Ombudsman.
The right to disconnect
Some employees in the national employment system have the right to disconnect from work.
The right to disconnect means that employees can refuse to monitor, read or respond to contact or attempted contact that is work-related outside their working hours, unless the refusal is unreasonable.
The Fair Work Ombudsman has information about what to consider when thinking about whether it could be unreasonable to refuse.
The Fair Work Commission can deal with disputes about the right to disconnect. For example, if an employer believes the employee being unreasonable by refusing contact, and the employee disagrees.
Flexible working arrangements
Some employees have the right to request flexible working arrangements. This includes an employee who:
- is a parent of a child who is school-age or younger, or responsible for the care of a child who is school-age or younger
- is a carer (for example, they provide care, support and assistance for someone who has a disability, a medical condition (including a terminal or chronic illness), a mental illness, or is frail or aged)
- has a disability
- is aged 55 or older
- is pregnant
- is experiencing family and domestic violence, or providing care or support to a family member or someone at home who is experiencing it.
Generally, they also need to have been working for the employer for a year. The request should be in writing. The Fair Work Ombudsman has free templates and sample letters to help employees prepare a written request.
A flexible working arrangement may include changes in:
- hours of work (changes to start and finish times or reducing hours)
- location of work (working from home)
- patterns of work (job sharing, split shifts, extra breaks).
The Fair Work Commission has information about what might be reasonable business grounds for refusing a request.
A dispute about this right might be because:
- an employer has refused a request for a flexible working arrangement, and the employee thinks there are no reasonable business grounds for refusing
- an employer hasn’t responded to the request in the required 21-day timeframe.
In the national employment system, the Fair Work Commission can deal with disputes about flexible working arrangement.
In the WA state employment system, the WA Industrial Relations Commission can deal with flexible working arrangement disputes.
You should also check your award, enterprise agreement, or employment contract for provisions dealing with flexible working arrangements.
Flexible working arrangements can also be a type of reasonable adjustment. Reasonable adjustments are changes to work processes, practices or environment that support people with disability to perform their work.
If a person with disability requires reasonable adjustments to participate in employment (including the recruitment process), then a failure by an employer or organisation to provide those adjustments constitutes unlawful discrimination on the basis of disability.
Learn more about workplace discrimination.
Keep learning: Flexible working arrangements in the national employment system
Flexible working arrangements - National Employment Standards
Pay, entitlements and conditions in awards and enterprise agreements
Employees and employers can sometimes disagree about the terms and conditions in their award or enterprise agreement.
Awards and enterprise agreements set out the legal minimum employee pay and conditions as well as rights and obligations for both employers and employees.
Employment disputes are often about:
- what rate of pay applies
- what the correct classification is for an employee
- whether penalty or overtime rates apply
- how annual or personal leave accrues, and when it can be taken
- how to interpret a clause in an award or agreement
- an entitlement in the National Employment Standards.
The dispute may be about what a particular clause means, whether it should be applied in a particular situation, or how it should be applied.
To resolve a dispute about an award or enterprise agreement:
- Step 1 — Try to resolve it in the workplace first — there are lots of free resources around
- Step 2 — Check for a dispute resolution clause and follow the process
- Step 3 — Work out if you are in the national employment system or in the state employment system.
The national employment system
The Fair Work Commission deals with disputes about an award or agreement in the national employment system.
Most people are in the national system. If you’re not sure, the Fair Work Commission can help refer you to the right place.
Western Australia state employment system
The WA Industrial Relations Commission generally deals with award and agreement disputes for employees and employers in the WA state employment system. They provide free mediation for any employment dispute.
The WA state employment system includes:
- Local government
- State public service
- Some private businesses (for example, sole traders, not-for profits and household employers).
In some cases, the Industrial Magistrates Court of WA may also be able to deal with the dispute.
If you’re not sure, Wageline can help refer you to the right place.
Keep learning: Which system of employment law applies in WA
Which system of employment law applies in WA | Author: Wageline WA
Government employees and employers in Qld, NSW, Tas and SA
Local government and state public sector employees and employers in each state are generally covered by their state employment system.
Award and agreement disputes for these employees and employers are dealt with by:
- Queensland — contact the Queensland Industrial Relations Commission
- New South Wales — contact the Industrial Relations Commission of NSW
- Tasmania — contact the Tasmanian Industrial Commission
- South Australia — contact the SA Employment Tribunal
Workplace rights and discrimination (general protections)
National system employers must follow the general protections laws. General protections laws protect rights at work for employees, potential employees and independent contractors.
General protections laws protect employees from adverse action for a prohibited reason.
Prohibited reasons include:
- for having a workplace right — for example, for using personal leave, asking to be paid, for saying you will take parental leave, for making a complaint
- for a discriminatory reason — for example, because of your age, sex, race, disability or other discriminatory reason
- for engaging in industrial activities — for example, for being a member of a union, for choosing not to be a union member
- so that the employer can engage in sham contracting — that is, dismissing an employee to re-hire them in the same work as an independent contractor
Examples of adverse action can include:
- injuring an employee in their employment (for example, not giving an employee their legal entitlements, such as pay or leave)
- changing an employee's job to their disadvantage
- treating an employee differently than other employees (for example, treating someone differently based on their sex or gender)
- not hiring someone
- offering a potential employee different terms and conditions for the job, compared to other employees.
It can also include firing an employee. Learn more about employment dismissals and termination. There is information about general protections dismissal.
The adverse action has to be ‘because’ of the prohibited reason
For the general protections laws to apply, the adverse action needs to have been because of the prohibited reason.
For example, an employee has their hours cut because they asked about their legal entitlements.
The ‘because’ is important. The general protections don’t apply if the reason for the adverse action is not a prohibited reason.
For example, an employee who is pregnant is refused annual leave because it is for the week before a major exhibition opening and everyone is needed to work. The ‘because’ is a valid reason for refusing the leave. Her pregnancy is not the reason she was refused annual leave.
Different requirements for the different legal systems
There are different general workplace protections laws for national system employees and state system employees.
In Australia, most employees are covered by the national system. The Fair Work Commission has information about who is covered by the national system and who covered by the state system.
The national employment system
You may be able to make a general protections dispute claim to the Fair Work Commission if you are:
- a current or prospective employee
- in the national employment system
You cannot apply to the Fair Work Commission (FWC) if you have a current case about the same issue with another body under an anti-discrimination law.
Time limit — You can apply up to 6 years after it happened.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the FWC will send a copy to the employer and ask them to respond.
The FWC may schedule a conference to deal with the case and try to resolve it. If the case doesn’t resolve at the conference, the FWC will issue a certificate. The employee then has the option of making a claim in the Federal Court.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
- Disputes about general protections – Fair Work Commission
The NSW state employment system
There are no general protections laws in the NSW state system, but there is something similar called ‘relief from victimisation’ that offers some of the same protections.
You may be able to make a claim called ‘relief from victimisation’ at the Industrial Relations Commission of NSW if you are:
- a current or prospective employee
- in the NSW state employment system.
This claim is available if you are victimised by your employer or prospective employer because of:
- union membership or industrial action
- making a complaint about your workplace entitlements or asking for your workplace entitlements
- making a complaint about workplace health and safety
- engaging in public or political activities (unless it interferes with your role)
Making a relief from victimisation claim
Time limit — Eligible employees have 21 days from the date the victimisation happened to make an application.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the NSW Industrial Relations Commission (NSWIRC) will send it to the employer and ask them to respond.
The NSWIRC may schedule a conciliation to deal with the case and try to resolve it. If the case doesn’t resolve at the conciliation, it may go to a formal hearing. Then the NSWIRC will decide whether the victimisation happened.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
- Relief from victimisation – Industrial Relations Commission of NSW
The Queensland state employment system
You may be able to make a general protections dispute claim at the Queensland Industrial Relations Commission if you are:
- a current or prospective employee
- in the Queensland state employment system.
Making a general protections claim
Time limit — You can apply up to 6 years after it happened.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Queensland Industrial Relations Commission (QIRC) will send it to the employer and ask them to respond.
The QIRC may schedule a conciliation to deal with the case and try to resolve it. If the case doesn’t resolve at the conciliation it may go to a formal hearing. Then the QIRC will decide the case.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
The South Australian state employment system
The SA state employment system covers state public sector and local government employees in South Australia.
There are no general protections laws in the SA state employment system.
If you are an SA state system employee or prospective employee and the dispute is about discrimination, or if you have been victimised for making a workplace complaint, there are a range of different agencies that deal with those things. Learn more about workplace discrimination and where to get help with unacceptable workplace behaviour.
If you have been dismissed for a prohibited reason you may be able to make:
- an unfair dismissal claim at the South Australian Employment Tribunal
- an unlawful termination claim at the Fair Work Commission
Learn more about employment dismissal and termination.
The Tasmanian state employment system
The Tasmanian state employment system covers state public sector and local government employees in Tasmania.
There are no general protections laws in the Tasmanian state employment system.
If you are a Tasmanian state system employee or prospective employee and the dispute is about discrimination, or if you have been victimised for making a workplace complaint, there are a range of different agencies that deal with those things. Learn more about workplace discrimination and where to get help with unacceptable workplace behaviour.
If you have been dismissed for a prohibited reason you may be able to make a claim at the Tasmanian Industrial Commission. This claim is called a ‘dispute relating to termination of employment’, or a ‘section 29(1A)’ claim. Learn more about employment dismissal and termination.
The Western Australian state employment system
The WA state employment system covers employees of sole traders, partnerships or other unincorporated entities in Western Australia, and state and local government employees.
In the WA state employment system, if your employer has taken damaging action against you because made, or are able to make, an employment related inquiry or complaint, you may be able to make a claim of protection of employee rights at the Industrial Magistrates Court of Western Australia.
If the dispute is about discrimination, there are a range of different agencies that can help. Learn more about workplace discrimination and where to get help with unacceptable workplace behaviour.
If you have been dismissed for a prohibited reason, you may be able to make an unlawful termination claim at the Fair Work Commission. Learn more about employment dismissal and termination.
