Australia’s general protections are set out in Part 3-1 of the Fair Work Act 2009, which provides broad protections for employees against adverse action taken because they have exercised (or could exercise) a workplace right, or because of their discrimination attributes. Unlike unfair dismissal claims, general protections do not have minimum employment periods or income thresholds — any employee (or prospective employee) can bring a general protections claim. The protections include a reverse onus of proof — once the employee shows the employer took adverse action, the burden shifts to the employer to prove the action was not taken for a prohibited reason.

This guide covers the protected workplace rights, adverse action, the reverse onus, and the practical implications for employers.

Key takeaways

  • General protections are governed by Part 3-1 of the Fair Work Act 2009 — providing broad protections against adverse action.
  • Workplace rights include the right to make a complaint, the right to engage in industrial activity, and the right to benefit from a modern award, enterprise agreement, or the NES.
  • Adverse action includes dismissal, injury to employment, unfavourable treatment, and any act that alters the employee’s position to their prejudice.
  • The reverse onus of proof applies — once the employee shows adverse action was taken, the employer must prove the action was not taken for a prohibited reason.
  • General protections apply to prospective employees (job applicants) as well as current employees.
  • There are no minimum employment periods or income thresholds — any employee can bring a claim.

What is a workplace right

Under s.341, a person has a workplace right if they:

  1. Are entitled to the benefit of a modern award, enterprise agreement, or contract of employment.
  2. Are entitled to the NES or any other provision of the Fair Work Act.
  3. Have a role or responsibility under the Fair Work Act.
  4. Can make a complaint or inquiry to the employer or a relevant person.
  5. Are able to engage in industrial activity (e.g., join a union, participate in protected industrial action).

Making a complaint or inquiry

The right to make a complaint or inquiry is broadly interpreted. It includes:

  • Complaining about underpayment of wages
  • Complaining about unsafe working conditions
  • Inquiring about entitlements
  • Raising a grievance about bullying or harassment

An employee who raises a concern about any of these matters is exercising a workplace right — and the employer cannot take adverse action because of it.

Adverse action

Under s.342, adverse action includes:

Form of adverse action What it covers
Dismissal Termination of employment
Injury to employment Demotion, reduction in pay, loss of status
Unfavourable treatment Being treated less favourably than other employees
Alteration of position Any act that alters the employee’s position to their prejudice
Threats Threatening to take any of the above actions

Adverse action is not limited to formal disciplinary action — it includes any conduct that prejudices the employee’s position.

Prohibited reasons

The employer must not take adverse action because the employee:

  1. Has a workplace right (or could exercise one) — s.340(1).
  2. Has engaged, or could engage, in industrial activity — s.340(2).
  3. Is entitled to the benefit of a discrimination attribute (race, sex, age, disability, etc.) — s.340(3).

The “because” test

The adverse action must be taken “because” of the prohibited reason. The test is whether the prohibited reason was a substantial and operative reason for the action. The employer cannot simply show that there was a valid reason for the action — it must show that the prohibited reason was not the reason.

The reverse onus of proof

The reverse onus is the most powerful feature of the general protections. Under s.361:

If in an application under this Part it is alleged that a person took, or is taking, action for a prohibited reason, and the person taking the action relied on a reason for the action, then the burden of proving that the action was not taken for that reason lies on the person taking the action.

In practice:

  1. The employee shows that adverse action was taken.
  2. The employee shows that the action was taken for a prohibited reason (e.g., because they raised a complaint).
  3. The burden shifts to the employer to prove the action was not taken for the prohibited reason.

The employer must prove this on the balance of probabilities — a civil standard. This makes general protections claims significantly harder for employers to defend than unfair dismissal claims.

Jurisdiction

General protections claims can be brought in:

  • Federal Circuit and Family Court of Australia — if the claim relates to dismissal.
  • Fair Work Commission — conciliation of general protections disputes is conducted by the Commission.
  • Federal Court of Australia — for claims that do not relate to dismissal or for claims that are not resolved at conciliation.

The Fair Work Commission can conciliate general protections disputes, but if conciliation fails, the matter proceeds to court.

Remedies

Compensation

Compensation for general protections is uncapped — unlike unfair dismissal, which is capped at 26 weeks’ pay. The court can award compensation for:

  • Economic loss (lost wages, lost superannuation)
  • Non-economic loss (distress, hurt, and humiliation)
  • Aggravated or exemplary damages (in the most serious cases)

Injunctions

The court can grant an injunction to prevent the employer from continuing the adverse action or to restore the employee to their former position.

Declarations

The court can make a declaration that the employer has contravened the general protections.

Common pitfalls

1. Retaliating against an employee who makes a complaint

An employee who makes a complaint about underpayment, unsafe conditions, or any other matter is exercising a workplace right. Dismissing, demoting, or otherwise prejudicing that employee is adverse action for a prohibited reason.

2. Not understanding the reverse onus

The reverse onus means the employer must prove the adverse action was not taken for the prohibited reason. An employer who assumes the employee must prove their case will be surprised by the burden it faces.

3. Ignoring the discrimination attribute

Adverse action because of an employee’s race, sex, age, disability, or other discrimination attribute is a breach of the general protections. The employer must ensure that any action taken against an employee is not motivated by a prohibited attribute.

4. Threatening adverse action

The general protections cover threats to take adverse action — not just the action itself. Threatening to dismiss an employee because they raised a complaint is itself a breach.

Putting it into practice

Five steps to manage general protections risk:

  1. Train managers on the prohibition against adverse action — the most common source of liability is a manager who retaliates for a complaint or inquiry.
  2. Document the reason for every employment decision — the employer must be able to show the reason was not a prohibited reason.
  3. Take all complaints seriously — investigate complaints and ensure the complainant is not subjected to detriment.
  4. Do not threaten adverse action — even a comment like “you’ll regret raising this” can constitute a threat.
  5. Engage legal advice early — general protections claims are complex and the reverse onus makes them difficult to defend without specialist advice.
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Sources

This article is general information, not legal advice. General protections law is complex and the reverse onus of proof makes these claims difficult to defend — consult an Australian employment lawyer for specific situations.