General protections claims: the basics

What the general protections are

The general protections are in Part 3-1 of the Fair Work Act 2009 (Cth). Their core idea is simple: an employer must not take action against a worker for a reason the law prohibits. The main protections are these.

(a) Workplace rights (s 340). You must not be treated badly because you have a workplace right, or because you have used it or propose to use it.

(b) Discrimination (s 351). An employer must not take adverse action against an employee or job applicant because of their race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin. There are exceptions, such as the inherent requirements of the job.

(c) Temporary absence (s 352). You must not be dismissed because you were temporarily absent from work because of illness or injury, within limits set by the regulations.

(d) Industrial activity (ss 346–350). You must not be treated badly for being, or not being, a union member, or for taking part in lawful industrial activity.

(e) Coercion, undue pressure and misrepresentation (ss 343–345), and sham contracting (ss 357–359), including dismissing an employee to re-engage them as a contractor for the same work.

What adverse action means

Adverse action is defined in s 342. For an employer, it includes dismissing an employee, injuring them in their employment (for example by cutting their pay), altering their position to their prejudice (such as a demotion or reduced hours), and discriminating between them and other employees. It also covers a prospective employer refusing to hire someone, and a business that engages contractors terminating or worsening a contractor's arrangement. A threat to do any of these things is also adverse action.

The term "adverse action claim" is often used to mean the same thing as a general protections claim.

What a workplace right is

Under s 341 you have a workplace right if you are entitled to a benefit under a workplace law, award, enterprise agreement or order (such as leave or minimum pay); if you can start or take part in a process or proceedings under a workplace law (such as a Fair Work Commission hearing, a flexible work request or enterprise bargaining); or if you are able to make a complaint or inquiry in relation to your employment.

In Evans v Trilab Pty Ltd [2014] FCCA 2464, a State Manager at a Perth testing laboratory said he was sacked for questioning why tests were not done to Australian Standards. The Federal Circuit Court refused to throw his claim out early, holding that it was arguable those questions were a protected complaint. Since then, the Full Federal Court has generally looked for a complaint to be grounded in a right or entitlement, for example under a law, an industrial instrument or your contract. In Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 an inquiry about a bonus provided for in the employee's contract was protected, and in Alam v National Australia Bank Ltd [2021] FCAFC 178 the Full Court followed Whelan while noting the differences. The point is not settled, so whether a particular complaint is protected can be a real issue in a case.

Who can claim, and the reverse onus

Most of the protections apply where the employer is a corporation or another national system employer. Many Western Australians work in the WA state system instead: employees of sole traders, partnerships and some trusts, and of the WA public sector and (since 1 January 2023) local governments. Different protections apply to them, although the Fair Work Act's unlawful termination provisions (s 772) can still reach them.

A feature that sets these claims apart is the reverse onus in s 361. If you show that the adverse action happened and that you had the workplace right or attribute, the law presumes the action was taken for that reason unless the employer proves otherwise. In practice the decision-maker usually has to give evidence of their real reasons.

How a claim runs, and the time limits

If you have been dismissed, you apply to the Fair Work Commission under s 365 within 21 days after the dismissal took effect (s 366). A forced resignation can count as a dismissal. Late applications are accepted only in exceptional circumstances. Since 7 July 2026 an alleged dismissal is enough at this stage: the Commission does not have to decide whether you were in fact dismissed before it deals with the dispute (s 368(1A)).

The Commission holds a conference. If the dispute does not settle and the Commission is satisfied all reasonable attempts to resolve it have failed, it issues a certificate (s 368(3)). You then have 14 days to apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) (s 370), unless both sides agree to the Commission arbitrating instead (s 369).

If you are still employed, you can ask the Commission to deal with the dispute under s 372, but it holds a conference only if both sides agree (s 374). You can also go to court directly. A court can order compensation (with no cap of the kind that applies to unfair dismissal), reinstatement (s 545) and penalties against the employer (s 546).

Many claims settle at the Commission stage, sometimes with a payment and agreed terms such as a statement of service. Because the 21-day limit is short, it is worth getting advice early.