If you are an employee and have been living and working in Australia at some point over the last decade or so (we are going to take a wild guess here and assume that’s you!) you are probably already familiar with the existence of unfair dismissal laws.
But you probably don’t know much about what the general protection laws are. And if you are already scratching your head wondering what we are talking about, then read on because this is super important if you are being mistreated at work or have recently been fired.
Now, you may be asking questions like…
Did I recently make a complaint or an inquiry about something relating to my employment and get treated badly because of it?
Did I complain about a workplace health and safety issue I witnessed and in turn, get treated like the worst employee to walk the face of the planet?
Did I inquire about some underhanded change to my employment contract and now I am being subjected to some bogus performance management process?
Did I apply for maternity or parental/leave and swiftly get told that my services are no longer needed?
Did I take sick leave and have my employment terminated as a result?
Am I being treated adversely because of my race, colour, sex, age, mental disability or family/carer’s responsibilities?
If any of these types of questions are ringing alarm bells to you, you may be eligible to pursue a General Protections Claim in the Fair Work Commission.
(Note: If you are a public sector employee, you may be eligible to pursue a General Protections Claim in the Queensland Industrial Relations Commission – this article deals with private-sector employees only)
Okay, so what is a General Protections Claim?
General Protections are provisions set out in the Fair Work Act 2009 which, as the name suggests, provide certain protections for eligible employees, prospective employees, independent contractors, principals and employers.
They broadly seek to:
- Protect your workplace rights;
- Protect you against workplace discrimination and other unlawful treatment; and
- Protect your freedom of association.
For employees, the general protections provisions mean that you have rights一Rights to be treated lawfully and fairly in the workplace and the right to stand up for yourself and take action if your employer is not complying with the Fair Work Act.
How do General Protections work?
There are several different types of general protection provisions, so it is completely understandable to get confused by how they all work. They each have their nuances and unique characteristics.
One of the most common general protection claims pursued by employees relates to workplace rights. If an employer takes ‘adverse action’ against you because of a particular reason (such as making a complaint or inquiry about something relating to your employment), that is unlawful.
Adverse action includes things like:
- Having your employment terminated;
- Not getting paid your statutory or contractual entitlements;
- Having your job changed to your disadvantage or detriment;
- Getting treated differently (and less favourably) to other employees;
- Missing out on a prospective job opportunity; or
- Being offered unfair terms and conditions compared to other employees…
…ALL BECAUSE YOU EXERCISED YOUR WORKPLACE RIGHT to make a complaint/inquiry about your employment.
Other common general protections claims pursued by employees relates to discrimination. For example, if an employer takes adverse action against you because of your age, gender, marital status, race, or because you are pregnant, that is unlawful.
There is a whole array of different general protections but these are the most common reasons why an employee might bring a General Protections Claim.
What can I do if I think a General Protections provision has been breached?
If you think that your employer has breached a general protections provision, the first thing you should do is seek legal advice. An employment lawyer will be able to give you the rundown on everything you need to know about general protection claims, including (very important!) whether you have a strong case or not.
If you are eligible, you can make an application to the Fair Work Commission to deal with your general protections dispute.
Take note – if your employer has terminated your employment, there is a strict 21-day timeframe that applies. That is, you need to lodge your application within 21 days of your dismissal taking effect, otherwise, your application will most likely get dismissed.
For everyone else, you can lodge an application at any time during your employment.
The process that follows varies depending on whether you have been dismissed or not.
- If you have been dismissed, there will be a conciliation conference where you will have the opportunity to voice your complaint and seek to resolve it with your former employer.
- Now, if your contract has not been terminated, the Commission can only conduct a conciliation conference if your employer agrees to participate (this is one of the reasons why you should seek legal advice before lodging a claim to increase your prospects of obtaining the outcome you are hoping to achieve).
- You also have the option of applying to the Federal Circuit Court of Australia or Federal Court of Australia in certain circumstances where you have a General Protections dispute.
General Protection claims are becoming more and more common as employees learn their rights and take a stand. For an employee, General Protection claims often offer better outcomes than unfair dismissal claims.
How Can Rubix Legal help you?
At Rubix Legal, our passion is to help you find your voice in the workplace.
We frequently help employees with General Protections claims. We offer a range of services, tailored to suit your individual and unique representation needs. You can read more about general protection claims here.
If you believe that a general protections provision has been breached by your employer, the best place to start is by booking in for a 20-minute complimentary consultation with one of our employment lawyers.