General Protections provisions in the Fair Work Act 2009 (Cth) were enacted in 2010 to expand existing laws designed to prevent discrimination and wrongful dismissal and to protect workplace rights.

The laws are aptly described as general protections because they provide a form of umbrella protection by upholding Australian values of fair play, equal treatment, freedom of association and permission to speak up or raise complaints when things are wrong in the place of employment.

general employee legal protection

The law achieves these objectives by prohibiting employers from taking adverse action against a person who exercises a workplace right or engages in industrial activity. There are many workplace rights afforded to employees. The principal ones include:

  • The right to make complaints and inquiries during employment. For example, you have a right to make a complaint about your remuneration without fear of adverse action being taken against you;
  • The right to take leave when you are sick, have family or carer’s responsibilities, or when you have agreed on a period of annual leave with your employer;
  • The right to participate in your union; and
  • The right to receive workers compensation for an injury at work.

The law also prevents employers from taking adverse action against a person because of certain attributes, including their:

  • Race;
  • Colour;
  • Age;
  • Sex;
  • Sexual orientation;
  • Physical or mental disability;
  • Marital status;
  • Cultural or social background;
  • Political opinion;
  • Pregnancy;
  • Family or carer responsibilities; or
  • Religion

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  • May 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.
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    The solicitors at the firm were very prompt and actioned my complaint against my employer very quickly. I obtained the result I wanted, in fact, I got a better result than what I had originally asked for. I was very pleased with the results and would highly recommend McDonald Murholme.
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Wrongfully Dismissed?

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Frequently asked general protections questions

What is an adverse action?

The most common form of adverse action taken by an employer is unfairly dismissing an employee. Adverse action can also include any actions that injure or discriminate against a person or alter a person’s position to their prejudice.

For example, if an employer reduces your wage or rank, issues you with a warning, or disappoints a reasonable expectation you held, then it will be held to have taken adverse action against you. Coercion and misrepresentation concerning workplace rights and industrial activities are also prohibited.

If your employer dismisses you because you made a complaint about your remuneration or the behaviour of a colleague or manager, then your employer will have breached the General Protections provisions of the Fair Work Act 2009 (Cth) and you are entitled to make a claim.

Who can make a claim under general protections provisions of the FWA?

Employees, Contractors, Prospective employees or contractors and employees as against a union.

Who has to prove an allegation of general protections breach?

There is a reverse onus of proof in General Protections claims. This means that when an employee alleges adverse action has been taken for an unlawful reason, the court will presume this is the case unless the employer produces sufficient evidence to prove otherwise.

What is the procedure for a general protections application?

If you believe adverse action has been taken against you in contravention of the General Protections provisions, you can make a claim either involving or not involving dismissal. The first step you should take is to speak with a specialist employment lawyer. McDonald Murholme can assist you with understanding your legal rights and lodge the application on your behalf.

After an application is lodged, the Fair Work Commission’s task is to conduct a conciliation or mediation to resolve the dispute. If the parties are not able to resolve the matter with the Commission’s assistance, the Commission issues a certificate which allows the parties to proceed in the courts. However, the majority of these claims are resolved at the stage of conciliation.

Is there a time limit?

Yes. You have 21 days from the date of dismissal to lodge an application. It is crucial to apply before this time.

What is the likely outcome for lodging a General Protections Claim?

The most likely outcome is a monetary amount paid by the employer to compensate you for loss of income and the shock, distress and any mental injury caused by the adverse action.

The majority of General Protection cases will settle before going to court. However, if the matter proceeds to court and a breach of the General Protections provision is found, the Federal Court or the Federal Circuit Court can make any order the court considers appropriate. This can include an order for reinstatement or an award of compensation for the loss you have suffered plus interest.

A civil penalty may also be imposed on the company for the contravention depending on the seriousness of its conduct.

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