General Protections
Overview
The general protections provisions under Part 3-1 of the Fair Work Act 2009 (Cth) are among the broadest and most frequently relied upon employee protections in Australian workplace law. They prohibit an employer from taking adverse action against a person because of a workplace right, or because of attributes such as race, sex, disability, age, or political opinion.
Adverse action is defined broadly and includes dismissal, injuring an employee in their employment, altering their position to their prejudice, and discriminating between employees. Importantly, it is not limited to termination — a general protections claim can arise from conduct during employment, such as a demotion, a refusal to promote, a restructure, or even the manner in which a performance process is conducted.
What makes these provisions particularly significant for employers is the reverse onus of proof. Once an applicant establishes that adverse action was taken and that they held a workplace right (or a protected attribute), the burden shifts to the employer to prove that the action was not taken for a prohibited reason. This is a substantial evidentiary hurdle and one that catches many employers off guard.
Key Considerations
A workplace right includes the ability to make a complaint or inquiry in relation to employment, the entitlement to a benefit under a workplace instrument or legislation, and the ability to participate in proceedings under a workplace law. The scope is wide and can encompass informal complaints, requests for flexible work, or even raising a concern about safety.
The concept of adverse action extends beyond formal decisions. Courts have found that failing to investigate a complaint, excluding an employee from meetings, or changing reporting lines can constitute adverse action if done for a prohibited reason. The test is whether the action altered the employee’s position to their prejudice.
General protections claims can be brought as dismissal disputes (where the adverse action is termination) or as non-dismissal disputes (where the employee remains employed). Dismissal disputes must be lodged within 21 days of the dismissal taking effect and are dealt with initially by conciliation at the Fair Work Commission. Non-dismissal disputes proceed directly to the Federal Circuit and Family Court of Australia.
The reverse onus means that an employer’s subjective reasons for acting are placed squarely in issue. It is not enough to show that a legitimate reason existed — the employer must prove that the prohibited reason was not a substantial and operative factor in the decision. Courts will scrutinise the timing, the process followed, and any inconsistencies in the evidence.
Remedies are significant. They include reinstatement, compensation (which is not subject to the cap that applies in unfair dismissal), injunctions, and penalties. The potential exposure is materially higher than in an unfair dismissal claim, which is one reason general protections applications have become increasingly common.
How We Can Help
We advise employers on how to manage workplace decisions — including performance management, restructures, and terminations — in a way that minimises exposure to general protections claims. We also represent employers and employees in conciliation proceedings, interlocutory applications, and contested hearings in the Federal Circuit and Family Court.
Whether you are planning a workplace decision and want to ensure the process is defensible, or you are responding to a claim that has been lodged, we can provide direct, practical guidance on your position and options.
Speak With Our Team
If you have questions about a general protections issue — whether you are an employer assessing risk or an employee considering your options — we are happy to discuss your circumstances in confidence.