Applying to the Federal Circuit Court - Step by step guide

There are five steps to follow when you make a general protections claim in the Federal Circuit Court:

An application to th​e Federal Circuit Court must be made within 14 days​ of Fair Work ​Commission (the Commiss​ion) ​issuing a certificate sayi​ng th​at ​conciliation hasn't resolved your dispute. 

​If the Commission member who did your conciliation told you that you don't have a good case, or it doesn't have merit, or doesn't have 'reasonable prospects of success', or if they wrote this on your certificate, you should get urgent legal advice before making a claim in the Federal Circuit Court.

 Applying to the Federal Circuit Court - Step by step guide

Step 1: Get the general protections claim for​m and the application form

What do I f​​ile? 

You will need two forms:

• Application - Fair Work Division (application form)
• Form 2 - "Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection" (general protections claim form).

Where can I get the for​​ms? 

You can get copies of the forms from the:

• Federal Cir​cuit Court, or
• Federal Circuit Court​ ​website.

 On 12 April 2013 the Federal Magistrates Court of Australia became the Federal Circuit Court of Australia. All forms have been changed to show the new name. The Federal Circuit Court will accept old forms up until 12 October 2013. 

Step 2: Fill in​ the forms

You can fill out the forms by hand using a blue or black pen (make sure it's neat). You can also fill them out online and then print them. When filling them out, you will need:

1. your details (as you are the employee)
2. the details of your job, such as who you worked for, how long you were employed, what you did and where you worked
3. the details of your lawyer or union (if you are represented)
4. the address that you want the court to use to send things to you (usually your postal address)
5. the details of the laws you think your employer broke when they dismissed you
6. to know what you want the court to do (this is called a 'remedy'), for example give you your job back or order your employer to pay you compensation
7. a copy of the certificate given to you by the Commission (if you don't know what this is, see Going to the Fair Work Commission).

Once you have filled in all the information, you need to sign the form. If you have a lawyer or a union representative, they can sign the form for you.

Instructions: For detailed instructions on completing the claim form and application, see Instructions for filling out a general protections application and Instructions for filling out a general protections claim.

Samples: To look at a completed sample of these forms, see Sample general protections application and Sample general protections claim.

Step 3: File the​​ forms

Where ​are they filed? 

Once you have completed the application and general protections claim form, you need to file them at a registry of the Federal Court. To find the registry closest to you, go to the Federal Circuit Court website.

How m​uch does it cost? 

The filing fee is $71.90 (as at 1 July 2018). If you are experiencing financial hardship or you receive a Centrelink payment you may be able to get your f​ee reduced. For more information, go to the Federal Circuit Court website - General Federal Law Fees.​

How ma​​ny copies should be filed? 

You should file at least four copies of each including the originals. The court will keep the originals. One copy of each will need to be served on (given to) your employer. Another copy of each will need to be included in the Affidavit of Service (which is the proof the claim was served). You should keep the remaining copies for your records.  

Step 4: Serve th​e claim and application

What does 'serve' mean?

Serve means to give the claim and application to your employer. A general protections claim and application need to be served by hand (wh​​ich is also called 'personal service'). If your employer is an individual, this means giving them the claim and application, or if they won't take them, putting the documents down in their presence and telling them what they are.

If your employer is a company, you can serve them by:

• posting the claim and application to their registered office (addressing it to the "Proper Officer")
• taking the claim and application to the registered office and leaving them with someone that works for the company
• handing the claim and application to a director of the company.

You can serve the claim and application, or you can get someone else to do it. There are professionals, called 'process servers' who can serve them for you. However, you will have to pay them.

When do they ha​​​ve to be served? 

This type of application and claim can be served anytime within 12 months from the date they are filed. It may be possible to serve the claim later, but only if the court gives you permission.

What if I can't serve t​hem? 

If you can't serve the application and claim (for example because you can't find your employer or because they are avoiding you) it is possible to apply to the court for 'substituted service'. Substituted service means that you can use another way to make sure your employer knows about the application and claim (for example email). You should get legal advice if you are having trouble serving the claim and application.

How does th​e ​​court know that I served the application and claim? 

If you served the application and claim, you will need to fill out a form called an 'Affidavit of Service'. The Affidavit of Service is evidence that you served the application and claim on your employer. This tells the court that the employer knows about the case. You can get a copy of the form from:

• the Federal Circuit Court, or
• the Federal Circu​it Co​urt website​.

Instructions: For detailed instructions on completing the form, see Instructions for filling out an Affidavit of Service.

Sample: To look at a completed sample, see Sample Affidavit of Service.

If you used a process server to serve the application and claim, make sure they give you an Affidavit of Service.

Step 5: Wait f​​​or the employer's response

What is ​​​the 'resp​​onse'? 

The response is a form filed by your employer and given to you. It says what parts of your claim your employer agrees with, what parts they disagree with, and why. If your employer also wants the court to make any other orders, they can ask for this in the response.

Sample: To see what an employer's response could look like, see Sample employer's response.

When shou​​​​ld I get the response?

Your employer must file their response and serve it on (give it to) you within 14 days of getting your application and claim.

What ha​ppens next?

When you originally filed the claim, the court would have added a date and time for the 'first directions hearing' to the application. You can check this by looking at your copy of the application that was sealed (stamped) by the court. The first directions hearing is the first time the case is in court. Even if you haven't received a response from the employer, you should make sure you attend the first directions hearing.

For more information, see Directions hearings.