General Protections
Fair Work Commission

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:

  • Protections relating to workplace rights;
  • Protections relating to involvement in industrial action;
  • Protections from discrimination; and
  • Protections from sham arrangements.

Who is eligible?

The general protections provisions in the Fair Work Act 2009 protect:

  • Employees;
  • prospective employees;
  • independent contractors; and
  • prospective contractors.

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.

What is adverse action?

There are several forms of conduct that constitute adverse action. Adverse action taken by an employer includes:

  • dismissal;
  • injuring the employee in employment;
  • altering the position of the employee to their prejudice; or
  • discriminating against the employee.

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.

What happens next?

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.

How can Rubix Legal help?

General Protections - Let’s get started...

If you would like to explore your rights to pursue a claim there are several ways that we can help.
  • You can book in for a complimentary 20-minute conference call to see if it looks like you have a case.
  • You can book in for a 1-hour paid Legal Advice Consultation for a detailed and tailored discussion about your legal options and prospects.
  • If your matter is more complex, you can book in for a 2-hour paid Legal Advice and Strategy Session.
  • Already know you need ongoing assistance and representation? You can engage us to assist you with the preparation of your application, preparation for any conciliation conference or hearing or have us act on your behalf for the entire matter. You can find out more about our pricing here.

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.

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