What is a general protections claim in Australia?
A general protections claim in Australia protects employees, prospective employees, and independent contractors from "adverse action" taken against them for exercising a workplace right, engaging in industrial activities, or because of discrimination, among other protected attributes. It is a key mechanism under the Fair Work Act.
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How it works in practice
What is a General Protections Claim?
A general protections claim is a legal avenue available under the Fair Work Act 2009 (Cth) in Australia. It allows individuals to seek redress if an employer or prospective employer has taken "adverse action" against them for exercising a workplace right, engaging in industrial activities, or because of a protected attribute (like age, gender, race, or disability). The aim is to prevent discrimination and protect fundamental freedoms in the workplace.
Adverse Action Explained
"Adverse action" is broadly defined and can include dismissal, injuring an employee in their employment, altering an employee's position to their prejudice, discriminating against a prospective employee, or threatening to take any of these actions. For independent contractors, adverse action might involve terminating their contract or refusing to engage them. The core principle is that individuals should not be disadvantaged for exercising their lawful rights or attributes.
Burden of Proof
A unique aspect of general protections claims is the reverse burden of proof. Once an employee raises a credible general protections claim, the employer must prove that the adverse action was not taken for a prohibited reason. This makes it a powerful tool for employees to challenge actions they believe are unlawful, placing the onus on the employer to demonstrate their actions were for legitimate, non-discriminatory reasons.
Important exceptions
A general protections claim is not applicable if the adverse action was taken for a legitimate, non-discriminatory reason, such as genuine poor performance or misconduct, provided the employer can prove this was the sole reason. Claims typically have strict time limits, generally 21 days from the date of dismissal for a dismissal-related claim. Independent contractors might have different protections compared to employees, and the definition of 'workplace right' must be met. Not all types of employer actions fall under "adverse action."
What you should do now
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Understand your rights: Familiarise yourself with the Fair Work Act's general protections provisions or seek advice from a legal professional or union.
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Gather evidence: Collect all relevant documents, communications, and witness statements that support your claim of adverse action and the prohibited reason.
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Attempt internal resolution: If safe to do so, try to resolve the issue with your employer directly or through your HR department, keeping records of all interactions.
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Lodge an application with the Fair Work Commission: If internal resolution fails, formally lodge a general protections application (Form F8) with the Fair Work Commission within the strict time limits.
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Participate in conciliation/mediation: Engage actively in the conciliation process facilitated by the Fair Work Commission to attempt a resolution before the matter proceeds to a formal hearing or court.
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