What is a General Protections Claim?

 

General protections are a bundle of protections for employees and other persons under the Fair Work legislation which prohibit a range of actions in the workplace, including ‘adverse action’, discrimination, coercion, misrepresentation, unlawful termination, and the ability to claim these protections when violated.

General protections exist to:

  • protect workplace rights;
  • protect freedom of association;
  • protect from workplace discrimination;
  • provide relief for people who have been discriminated against, victimised, or have experienced other unfair treatment; and
  • prevent coercion and misrepresentation with workplace rights and lawful industrial action.

 

What are General Protections Claims?

 

An employee or independent contractor may be eligible to make a general protections claim if ‘adverse action’ has been taken against them because:

  • they were exercising a workplace right;
  • they were lawfully engaging in industrial activity (for example, striking);
  • they were discriminated against based on their:
    • race;
    • colour;
    • sex;
    • sexual orientation;
    • age;
    • physical or mental disability;
    • marital status;
    • family or carer’s responsibilities;
    • pregnancy;
    • religion;
    • political opinion;
    • national extraction; or
    • social origin.

A person may also make a general protections claim if they have been subject to a ‘sham arrangement’ in which they have been engaged to work as an independent contractor when they are actually working as an employee.

Certain entities (including employers, principals, employees and industrial associations) are prohibited from taking ‘adverse action’ against certain other persons (including current and former employees, prospective employees and independent contractors).

In most cases, it is an employer who takes ‘adverse action’ against a worker, however there may be instances where a fellow employer has taken adverse action against another employee.

 

What is Adverse Action?

 

An ‘adverse action’ includes doing, threatening, or organising the following:

  • dismissing an employee;
  • unfairly demoting a worker to a lower job;
  • harming an employee by changing their job, for example by cutting shifts or hours;
  • discriminating between employees;
  • not hiring someone; or
  • offering a potential employee different, unfair terms and conditions compared to other employees.

Not all harmful actions taken by a person will be ‘adverse’ for a general protections claim, for example, making a worker’s job genuinely redundant or refusing to hire a worker because they do not have a driver’s licence if the job requires one.

 

What is the difference between an Unfair Dismissal Claim & a General Protections Claim?

 

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

Adverse action taken for a general protections claim does not need to result in dismissal.

An independent contractor cannot make a claim for unfair dismissal but an independent contractor can make a general protections (dismissal) claim.

Unfair dismissal claims protect employees from unreasonable dismissal by an employer while general protections safeguard workers’ rights more generally.

There is no income threshold for a general protections claim.  The current income threshold for an unfair dismissal claim is $175,000 (from 1 July 2024 to 30 June 2025).

There is no limit as to how much you can claim for a general protections claim.  The maximum amount that you can claim for an unfair dismissal claim is 6 months’ wages up to a current total of $87,500 (half of the current income threshold).

There is no minimum employment period for a general protections claim, while minimum employment periods apply for unfair dismissal claims.

 

How do I make a General Protections Claim?

 

If you believe your rights as a worker have been breached and adverse action has been taken against you, you may be eligible to make a general protections claim.

The claim process varies depending on the nature of your general protections claim, in particular whether it relates to dismissal or not.

If the incident does not relate to dismissal, you can make a claim up to 6 years after the incident.

Unlike a general protections claim for dismissal, you can either make an application to the Commission or directly to the Court.

The Court will list the matter for a hearing and may make binding orders.

If a party did not agree to attend a conference at the Commission before the application was made to the Court, the Court may make costs orders against that party for unreasonably refusing to participate.

 

What other options are available?

 

Depending on the circumstances of your case, it may be more suitable to make a claim:

  • for breach of contract;
  • with the Court’s small claims jurisdiction;
  • under anti-discrimination legislation; or
  • under unlawful termination laws (in very limited circumstances).

You cannot make a general protections claim if you have a current case about your matter with another body under anti-discrimination law.

 

Contact Us

 

For more information about general protections claims, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.

You can also read more about our employment law services here.

Related Blog – Can Contractors Claim Unfair Dismissal?

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