It may be that you have read all the available information, called Wageline and the Fair Work Ombudsman, and you still haven’t been able to figure out which system you are in.
What you do next depends on the issue you are having. If you haven’t been dismissed from your job, then it might not be a major problem for proceeding with a legal claim.
For the following claims, it doesn’t matter which jurisdiction you are in:
- a discrimination complaint to the Equal Opportunity Commission
- a discrimination complaint to the Australian Human Rights Commission
- a breach of contract claim to the Magistrates Court
- a denial of contractual benefits claim to the Western Australian Industrial Relations Commission.
If your dispute is about unpaid entitlements under the minimum wage, or an industrial award or an industrial agreement, then you do need to know the right jurisdiction. However, you are also likely to have 6 years to make your claim.
So, if you do lodge in the wrong jurisdiction, you can withdraw your claim and lodge it in the right jurisdiction. Of course, you should make your best effort to identify the correct jurisdiction first, because you don’t want to waste the time of the court or commission, and you don’t want to waste your own time.
If you have lost your job, the issue is a bit more serious, because some dismissal-based claims have a limitation period as short as 21 days.
In this situation you might want to see if you can get legal advice to help you figure it out.
If you can’t get legal advice in time then a good practical option is to look at your contract of employment, as well as other employment documents you can access like policies and procedures. If any of these documents mention the Fair Work Act, or the National Employment Standards, or a Modern Award, then it’s likely that your employer considers itself to be in the national system.
It’s possible they are wrong. However, it is more likely that they are correct, and further, it also makes it less likely that they will lodge a jurisdictional objection to a claim you make in the national system.
If you are unsure which jurisdiction you are more likely to be in, then the best option may be to lodge in the national system. The state system has a longer unfair dismissal limitation period of 28 days, so you have a little more time to withdraw your claim and switch jurisdictions if you need to.