Understanding general protections under the Fair Work Act

Understanding general protections under the Fair Work Act

The Fair Work Act 2009 (Cth) (Act) includes ‘general protections’ designed to ensure fair treatment at work.

The protections are designed to prevent adverse action against employees or prospective employees for prohibited reasons, such as exercising a workplace right, engaging in union activities or because of a protected personal attribute (e.g. disability, age or race).

What is ‘adverse action’?

Adverse action refers to conduct that causes harm, disadvantage or detriment in employment.

Examples include:

• dismissal
• altering an employee’s position to their detriment
• discrimination
• refusing to employ a prospective employee
• offering less favourable terms to a prospective employee
• threatening any of the above

A key point is that not all adverse action is unlawful. To breach the general protections provisions, the adverse action must have been taken for a prohibited reason. This includes where the prohibited reason is only one of the reasons for which action is taken, even if the other reasons are not prohibited.

Workplace rights: what is protected?

Employees are protected from adverse action because they have exercised, or propose to exercise, a workplace right.

A workplace right exists where an employee:

• is entitled to a benefit under workplace laws, awards or agreements,
• can initiate or participate in a process under workplace laws, or
• can make a complaint or inquiry about their employment.

In everyday terms, this might include:

• raising a dispute under an award or enterprise agreement,
• participating in Fair Work Commission proceedings,
• taking or requesting leave,
• requesting a flexible working arrangement, or
• making a complaint internally or to a regulator (such as the Fair Work Ombudsman or a state safety regulator).

Industrial activity and freedom of association

The Act protects an employee’s right to engage, or not engage, in industrial activity.

This includes the freedom to:

• join or not join a union
• participate in union activities or discussions
• act as a union delegate
• take part in protected industrial action

Employers must not take adverse action against employees because of their involvement in, or refusal to engage in, these activities.

Protection from discrimination

General protections also prohibit adverse action based on certain personal attributes, including age, sex, disability, pregnancy, family responsibilities, religion and political opinion.

There are limited exceptions, such as where a decision relates to the inherent requirements of the role or is lawful under applicable anti‑discrimination laws. These exceptions are interpreted narrowly.

Other types of prohibited conduct

The Act also prohibits a range of related conduct, including:

• dismissal due to temporary illness or injury,
• coercion or undue pressure regarding workplace rights or industrial activity,
• making false or misleading representations about workplace rights, and
• unfair pressure to enter workplace arrangements (e.g. sham contracting or casual employment).

Making a general protections claim

An employee who believes their rights have been breached can make an application to the Fair Work Commission (FWC).

General protections claims can relate to dismissal or employer actions during employment.

If the claim involves dismissal, it must generally be lodged within 21 days of termination.

Generally, the first step in a claim is for the FWC to attempt to resolve the matter through conciliation or mediation. If unresolved, the matter may proceed to court, where remedies can include compensation, penalties, and reinstatement.

The reverse onus of proof

A key feature of general protections claims is that there is a “reverse onus of proof”.

In broad terms, this means that once an employee alleges that adverse action was taken for a prohibited reason, the employer must prove that it was not.

This makes documentation critical. Employers should clearly record their reasons for decisions, particularly disciplinary action or dismissal, and ensure decision-makers can explain their reasoning if challenged.

How general protections differ from unfair dismissal

Although both types of claims often arise from dismissals, they are quite different. Key differences include:

• Focus: Unfair dismissal looks at whether a dismissal (including the process leading to dismissal) was harsh, unjust or unreasonable. General protections focus on the reason for the action, not the process.
• Eligibility: Unfair dismissal claims are subject to eligibility criteria including minimum employment periods and income thresholds. General protections claims are not subject to the same limits.
• Compensation: Unfair dismissal compensation is capped. General protections compensation is not capped.

Key takeaways

• General protections apply beyond dismissal and can affect recruitment, day-to-day management and workplace interactions.
• Actions taken in response to complaints, leave requests or other workplace rights can create risk if not managed appropriately.
• Before taking action that may adversely affect an employee, employers should consider whether a protected reason could be a factor and ensure decisions are based on legitimate, well‑documented grounds.
• The Fair Work Ombudsman’s website includes free information about general protections.