What Is a General Protections Claim in Australia?

A general protections claim is a legal claim that may arise when a person is subjected to unlawful conduct at work because they have exercised, or proposed to exercise, a workplace right, engaged in industrial activity, or because of a protected attribute. The protections are contained in the Fair Work Act 2009 (Cth) and can apply to employees, prospective employees and, in some circumstances, independent contractors.

For anyone asking what is a general protections claim, the key point is that the law is concerned with the reason for particular workplace conduct. An employer may generally make legitimate decisions about performance, conduct, restructuring or business needs, but those decisions must not be made for a prohibited reason.

What Is Adverse Action Under the Fair Work Act?

The Fair Work Act prohibits certain forms of adverse action where the action is taken for a prohibited reason. Adverse action can involve more than termination of employment.

Under the Act, adverse action by an employer can include:

1. Dismissing an employee.
2. Injuring an employee in their employment, such as withholding a lawful entitlement.
3. Altering an employee’s position to their prejudice.
4. Discriminating between an employee and other employees.
5. Refusing to employ a prospective employee or offering discriminatory employment terms.

Threatening or organising to take adverse action can also fall within the definition.

An general protections claim therefore does not necessarily depend on an employee losing their job. For example, an employee could potentially raise concerns if their hours were significantly reduced, their duties were changed to their detriment, or they were treated differently after exercising a workplace right.

Importantly, adverse action is not automatically unlawful simply because it has a negative effect. The reason for the action is central. The Fair Work Act protects employees from adverse action taken because of a workplace right, including exercising or proposing to exercise that right.

Common Situations Where a General Protections Claim May Arise

Workplace disputes can involve general protections where an employee believes they have been treated unfavourably for exercising a protected right or because of another protected reason.

Examples may include:

• Making a complaint or inquiry about workplace rights or entitlements.
• Asking about pay, leave or other employment conditions.
• Participating in a workplace process concerning employment rights.
• Taking part in lawful industrial activity.
• Being treated adversely because of a protected attribute, such as race, sex, age, disability, religion or family or carer’s responsibilities.
• Being dismissed or disadvantaged because of a protected workplace activity or right.

The protections can also be relevant before employment begins. For example, a prospective employee may have rights if a prospective employer refuses to hire them, or offers different employment terms, for a prohibited reason.

General Protections Claim vs Unfair Dismissal

A general protections matter and an unfair dismissal claim are not the same, even though both can arise after an employee loses their job.

Unfair dismissal generally considers whether the termination was harsh, unjust or unreasonable, subject to the eligibility requirements under the Fair Work Act. A general protections matter instead focuses on whether the dismissal occurred for a prohibited reason, such as exercising a workplace right or because of a protected attribute.

This distinction is important. An employee may believe that the stated reason for dismissal is not the real reason for the termination. In general protections proceedings, the Act provides a presumption concerning the alleged reason for the action unless the person responsible proves otherwise.

Where an employee has been dismissed and believes the dismissal contravened the general protections provisions, the application to the Fair Work Commission needs to be lodged within 21 days of the dismissal taking effect.

When Should Legal Advice Be Considered?

A general protections matter can involve detailed questions about workplace rights, the reason for an employer’s decision, evidence and the appropriate legal pathway. Legal advice may be particularly important where:

1. An employee has been dismissed shortly after making a complaint or exercising a workplace right.
2. There has been a significant change to duties, hours, remuneration or working arrangements.
3. An employee believes discrimination has influenced a workplace decision.
4. An employer is concerned that a proposed disciplinary or performance process could give rise to a claim.
5. A dismissal has occurred and the 21-day application period may apply.

Because these matters often depend on the particular facts and evidence, obtaining advice from experienced Employment Lawyers can help an employee or employer understand the relevant rights, risks and available options before taking further action.

Understanding Workplace Protections

The general protections provisions are an important part of Australia’s employment law framework. They are designed to protect workplace rights and other lawful workplace activities while allowing employers to make legitimate decisions about their businesses.

Where an employee or employer is concerned that workplace conduct may amount to adverse action, early consideration of the circumstances and applicable legal protections can help clarify whether further action is appropriate. Legal advice should be based on the specific facts of the situation, rather than on the label given to the dispute.

Frequently Asked Questions