Originating application under the Fair Work Act 2009 alleging discrimination (Form 81)

Section 351(1) of the Fair Work Act 2009 says an employer must not take adverse action against an employee or prospective employee because of attributes such as race, sex, sexual orientation, age, disability, family or carer's responsibilities, pregnancy or religion, subject to the exceptions in section 351(2). Rule 34.05 of the Federal Court Rules 2011 says an application for an order about an alleged contravention of section 351(1) is made by originating application in accordance with Form 81. If the discrimination involves dismissal, the application must be accompanied by the Fair Work Commission's certificate that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful (r 34.05(3)), unless a Fair Work Inspector brings it.

When you need it

• An employer took adverse action (as defined in s 342) against you, as an employee or prospective employee, because of a protected attribute in section 351(1).
• The action involved dismissal and the Fair Work Commission has issued a certificate under section 368(3)(a), or the action did not involve dismissal.
• For a dismissal said to breach a general protection for other reasons, Form 79 is used; for unlawful termination under section 772, Form 80.

1. 1

   Complete the heading

   Fill in the District Registry and Division, the applicant's name and the employer as respondent.

2. 2

   Details of claim

   Describe the adverse action taken and why you say it was because of a protected attribute. State each section of the Fair Work Act you rely on.

3. 3

   Relief sought

   Keep the relief you want, such as an injunction, compensation or reinstatement, and give details. For compensation, state the amount and how it is calculated. The Court's powers are in sections 545 and 546.

4. 4

   Employment details

   Give the start date, role and workplace if you were employed, the end date and whether written notice of termination was given (attach it if so), or the date of the conduct if you were a prospective employee.

5. 5

   Extension of time and other relief

   If you are filing more than 14 days after the Commission issued its certificate, explain why you need more time. Add any other relief in numbered paragraphs.

6. 6

   Addresses, service and signature

   Give your address for service and email, say whether you intend to serve the respondent, then date and sign.

• For a dismissal dispute, file within 14 days after the day the Commission issued the certificate, or within any further period the Court allows (s 370(a)). An application that includes an interim injunction is not subject to that requirement (s 370(b)).
• File through eLodgment with the certificate (if dismissal is involved) and a statement of claim, affidavit or, in appropriate cases, a concise statement (E&IR-1 para 4.2). A filing fee applies - check the current fee schedule.
• Proceedings on Form 81 are generally listed in the National General Protections List for initial case management by a Registrar (E&IR-1 para 5.7).
• Serve the application and accompanying documents personally on the respondent at least 5 days before the first hearing (r 8.06).

• For dismissal disputes, the application to the Fair Work Commission itself must be made within 21 days after the dismissal took effect (s 366).
• Section 351(1) does not apply to action that is not unlawful under an anti-discrimination law in force where it was taken, or that is based on the inherent requirements of the position (s 351(2)).
• Include every claim you want to make against the employer in the same application (r 34.05(2)).