The Fair Work Act contains a number of general protection provisions that provide certain protections to national system employees and employers. It also provides certain protections to independent contractors, principals and other certain persons and organisations.
General protection claims are a popular alternative to unfair dismissal claims because the circumstances that can amount to adverse action (and therefore unlawful action) are much broader than those that amount to an unfair dismissal.
It is strongly advised that legal advice be obtained before lodging a general protections claim due to the complexity of the legal issues and risk of error. If you believe you have a claim you can contact us here for assistance.
There are several different types of general protections. The most common type of General Protections claim is the one involving dismissal but claims can also relate generally to:
The general protections provisions in the Fair Work Act 2009 protect:
They also protect employers, principals (and prospective employers and principals) and industrial associations.
All claims brought by eligible persons must relate to a constitutional-covered entity (such as a constitutional corporation, the Commonwealth or a Commonwealth Authority or body corporate).
There are two different types of general protections claims depending on whether the dispute involves a dismissal or not.
Note: If you are not eligible to lodge a general protections application in the Fair Work Commission you may be eligible to pursue an industrial dispute through the Queensland Industrial Relations Commission if you are in Queensland. Please contact us to find out more.
There are several forms of conduct that constitute adverse action. Adverse action taken by an employer includes:
If the above does not describe the situation you find yourself in, we urge you to contact us to discuss your specific circumstances.
A common general protections claim is one involving workplace rights. An employer must not take adverse action against an employee because the employee has or has exercised (or proposed to exercise) a workplace right.
For example, an employer must not dismiss an employee because the employee made a complaint about their wages and entitlements.
There are strict timeframes that apply to general protections claim involving dismissal. To proceed with a General Protections Application involving dismissal the employee must lodge their claim within 21 days of the dismissal taking effect. If you believe you are out of time it is crucial that you seek legal advice ASAP. We may be able to assist you with pursuing a General Protections claim outside of the 21 day timeframe if ‘exceptional circumstances’ exist.
The process depends on whether the dispute in question involves a dismissal. Given that the most common type of general protection application involves dismissal, we have outlined this process only. If your situation does not involve dismissal, please contact us to discuss the process that will apply to you.
Once a general protections application (involving dismissal) has been lodged with the Fair Work Commission, the application will typically be listed for a telephone conciliation. This is an opportunity for the employer and employee to resolve the general protections dispute.
Employees can be legally represented at telephone conciliations. If you require legal representation please get in touch.
If the dispute cannot be resolved at the telephone conciliation, the Fair Work Commission member will provide you with advice on your options moving forward. These typically include arbitration or a hearing before the Federal Circuit Court of Australia. If the Commission member is satisfied that reasonable attempts have been made to resolve the dispute and is unlikely to be resolved, they will issue a Certificate to that effect. You will then have the option to file a fresh claim (called a General Protections Court Application) in the Federal Circuit Court of Australia.
If you’d like to have a quick chat to see if it looks like you have a case, then our complimentary 20-minute call option is the perfect place to start.
The information provided on this page is of a general nature only and is not to be relied upon as legal advice applicable to your specific circumstances. Specific legal advice is provided through our consultation sessions.