Have you been dismissed, treated unfairly, or punished at work for exercising a workplace right? You may be able to make a general protections claim. This area of Australian employment law is designed to safeguard your rights and ensure you are not treated badly for standing up for yourself.
This guide will walk you through what a general protections claim is, who is eligible to make one, and the process at the Fair Work Commission. We will cover your fundamental workplace rights and what happens if an employer takes adverse action against you.
What Are General Protections?
General protections are a set of rights for employees and independent contractors under the Fair Work Act 2009 (Cth). These laws protect your freedom to exercise workplace rights, engage in industrial activities, and be free from unlawful discrimination, coercion, and misrepresentation.
If your employer takes action against you for exercising one of these rights, it is known as ‘adverse action’. A general protections claim is the formal process you can start at the Fair Work Commission if you believe this has happened to you.
Understanding Your Workplace Rights
At the core of a general protections claim is the idea that you have specific, legally protected workplace rights. You cannot be penalised for using them.
These rights include:
- Making a complaint or inquiry: You have the right to ask questions or raise concerns about your pay, safety, or other employment conditions.
- Leave entitlements: This covers taking personal leave, annual leave, or parental leave.
- Union membership: You are free to join or not join a union and participate in lawful industrial activities.
- Protection from discrimination: You cannot be treated less favourably because of your race, gender, age, sexual orientation, disability, or other protected attributes.
When an employer punishes you for exercising any of these rights, it can lead to a general protections claim.
What is Adverse Action?
Adverse action is the negative step an employer takes against you. It is a key element in any general protections claim.
Examples of adverse action include:
- Dismissing you from your job.
- Injuring you in your employment (e.g. demoting you or cutting your hours).
- Altering your position to your disadvantage.
- Discriminating against you.
- Refusing to hire you.
- Threatening to do any of the above.
For a claim to be successful, you must show that your employer took adverse action because you exercised a workplace right. This is an important link to establish.
Who Can Make a General Protections Claim?
Both employees and independent contractors can make a general protections claim. The protections also cover prospective employees who may have been discriminated against during the hiring process.
To be eligible, you must be covered by the national workplace relations system. Most private sector employees in Australia are. While state and local government employees have different systems, some may still be covered.
If you have been dismissed, you must lodge your claim with the Fair Work Commission within 21 days of the dismissal taking effect. This deadline is extremely strict, so acting quickly is vital. Extensions of the deadline are only granted in exceptional circumstances.
For claims not involving dismissal, there is no strict time limit, but it is always best to act promptly.
The General Protections Claim Process
Navigating the Fair Work Commission can seem complex, but the process follows a structured path. It is designed to resolve disputes efficiently and fairly.
Step 1: Lodging Your Application
The first step is to file an application form with the Fair Work Commission. If your claim involves a dismissal, you will use Form F8. If it does not involve a dismissal, you will use Form F8C. You must pay an application fee unless you qualify for a waiver.
In your application, you need to clearly state the adverse action taken against you and the workplace right you believe you were exercising.
Step 2: The Employer’s Response
Once your application is served on your employer, they will have a chance to file a formal response. In their response, they will outline their side of the story and explain why they took the action they did.
A key feature of general protections claims is the ‘reverse onus of proof’. This means the employer must prove that their reasons for the adverse action were not unlawful. For example, if you were dismissed, they must prove it was for reasons like poor performance and not because you made a complaint about safety.
Step 3: Conciliation Conference
The Fair Work Commission will typically schedule a conciliation conference. This is a private, informal meeting conducted by a Commission conciliator. The goal is to help you and your employer reach a mutually agreed-upon settlement.
The conciliator does not take sides or make a decision. Instead, they facilitate a discussion to explore options for resolution. Many claims are settled at this stage. A settlement could include financial compensation, a statement of service, or an agreement for you to resign.
Step 4: Proceeding to Court
If the matter is not resolved at conciliation, the next steps depend on whether your claim involves dismissal.
- For dismissal claims: If conciliation fails, you can choose to have the Fair Work Commission arbitrate the matter (if both parties agree) or proceed to the Federal Court or Federal Circuit and Family Court.
- For non-dismissal claims: The Commission will issue a certificate confirming conciliation was unsuccessful. You can then choose to make an application to the Federal Court to have your case heard.
Going to court is a significant step that involves legal costs and formal hearings where a judge will make a final decision.
Potential Outcomes of a Claim
If your general protections claim is successful, a court can make a range of orders. The goal is to put you back in the position you would have been in if the adverse action had not occurred.
Possible outcomes include:
- Reinstatement: An order for your employer to give you your job back.
- Compensation: Payment for lost wages and other economic losses.
- Pecuniary Penalties: The court can order your employer to pay a penalty for breaching the Fair Work Act.
- Injunctions: An order to stop the employer from taking certain actions.
- Compensation for non-economic loss: This can include payments for hurt, humiliation, and distress.
Final Thoughts
Understanding your workplace rights is the first step in protecting yourself from unfair treatment. The general protections provisions in Australian employment law provide a powerful tool for employees who have been penalised for exercising their rights.
If you believe you have been subjected to adverse action, remember the strict 21-day time limit for dismissal claims. Seeking legal advice early can help you understand your options and navigate the process with confidence. Making a general protections claim at the Fair Work Commission can help you achieve a fair resolution and uphold your rights at work.
This is general information only and does not constitute legal advice.
If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 2146 2995 or email mklein@kleinlegal.com.au