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General protection claims
General Protections Claims under the Fair Work Act 2009 (Cth): What You Need to Know The Fair Work Act 2009 (Cth) (the FW Act) provides employees across Australia with a broad range of workplace protections. Among these, the General Protections provisions are some of the most powerful. They protect employees and prospective employees from adverse action, coercion, misrepresentation, and undue influence or pressure. Unlike unfair dismissal claims, General Protections matters do not require minimum employment periods or salary thresholds. As such, they are a valuable legal avenue for workers who believe their rights have been breached—especially where discrimination, retaliation, or coercion is alleged. This article explains what General Protections are, what types of claims may be brought, the legal framework for adverse action, and the process for resolving disputes. It focuses on the jurisdiction of the Fair Work Commission and Federal Courts, and provides guidance on remedies and enforcement. What are general protections? The General Protections provisions, found in Part 3-1 of the Fair Work Act, aim to: Protect workplace rights; Ensure freedom of association; Provide protection against workplace discrimination; Promote fairness in the workplace. These protections apply not only to employees, but also to prospective employees, contractors, industrial associations, and union members. The provisions create obligations that employers must not breach, regardless of the size or nature of the business. Key Protections Under the Act The General Protections regime encompasses several distinct legal protections. 1. Workplace Rights A person has a workplace right if they are: entitled to a benefit or role under a workplace law, award, agreement or order; able to initiate or participate in a process or proceeding under a workplace law; able to make a complaint or inquiry in relation to their employment. It is unlawful for an employer to take adverse action against a person because they have (or exercise or propose to exercise) a workplace right. 2. Freedom of Association This refers to the right of individuals to: choose whether or not to join a union; be represented in the workplace; participate in lawful industrial activities. Employers must not take adverse action because an employee participates in (or refuses to participate in) union-related activity. 3. Protection from Discrimination General Protections prohibit adverse action based on protected attributes, including: race; sex; age; disability; religion; political opinion; national origin; family or carer responsibilities. Discriminatory treatment on these grounds may give rise to both a General Protections claim and a claim under anti-discrimination legislation. What Is Adverse Action? Understanding the meaning of adverse action is crucial. Under section 342 of the FW Act, adverse action includes: dismissing an employee; altering the position of the employee to their prejudice; injuring the employee in their employment; discriminating between employees; Critically, it is not necessary to prove that the adverse action was the sole reason for the conduct. It need only be one of the reasons, even if it is not the dominant or primary one. This threshold, coupled with a reverse onus of proof, makes general protections claims more favourable to applicants compared to other employment claims. Reverse onus of proof One of the most significant features of the General Protections regime is the reverse onus under section 361 of the Act. Once an applicant establishes that adverse action occurred and alleges a prohibited reason, it is presumed that the adverse action was taken for that reason – unless the employer proves otherwise. The employer must lead clear and cogent evidence to rebut the presumption. If they fail to do so, the court will likely find that the prohibited reason was the sole, or a, motivating factor, and therefore find in favour of the applicant. Examples of General Protections Breaches Termination after safety complaint An employee who raises concerns about workplace safety and is later dismissed may have a claim for adverse action if the dismissal is connected to the complaint. Retaliation for taking personal leave An employee who exercises their entitlement to personal leave and is demoted, terminated or disadvantaged may pursue a general protections claim. Refusal to hire due to union affiliation A prospective employee denied employment because of their union membership may be able to establish unlawful adverse action. How to make a general protections claim The process for making a general protections claim depends on whether or not the alleged adverse action involves dismissal. 1. Claims involving dismissal Where adverse action results in termination of employment, the applicant must: lodge an applicant with the Fair Work Commission; do so within 21 days of the dismissal taking effect. The Commission will then convene a conciliation conference, usually conducted by telephone, to attempt to resolve the matter. If no resolution is reached, the applicant may request a certificate allowing the matter to proceed to the Federal Court or Federal Circuit and Family Court of Australia. 2. Claims not involving dismissal For adverse action claims that do not involve dismissal, the applicant may apply directly to the Federal Court or Federal Circuit and Family Court, without the need to first approach the Commission. However, legal advice is strongly recommended in such cases, as court proceedings can be complex and costly. Remedies available Successful general protections claims can result in a broad range of remedies. These include: reinstatement (in cases of dismissal); compensation for economic loss, hurt, or humiliation; civil penalties against the employer and any individuals involved in the contravention; injunctions to prevent ongoing or future contraventions. There is no cap on compensation, unlike unfair dismissal claims, where compensation is generally capped at 26 weeks’ pay. This makes General Protections claims particularly powerful where there is evidence of financial harm or emotional distress. Case Law: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 This High Court decision remains one of the leading authorities on general protections. Mr Barclay, a union representative, sent an email raising concerns about workplace conduct. He was suspended and later dismissed. The employer argued the dismissal was due to misconduct, not his union involvement. The High
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