General protections disputes

On this page:

• What are general protections?
• General protections dispute applications
• General protections dismissal applications
• Unlawful termination

What are general protections?

The general protections provisions of the Fair Work Act 2009 (the Act) aim to protect workplace rights and freedom of association and to provide protection from workplace discrimination.

A person (such as an employer) must not take any adverse action against another person (such as an employee) because the other person has a workplace right, has exercised a workplace right, or proposes to exercise such a right.

'Workplace rights' has a very broad meaning. For example, a person has a workplace right if he or she has an entitlement under an award or agreement or a workplace law, is able to initiate a proceeding under a workplace law or is able to make a complaint or inquiry in relation to their employment.

'Adverse action' includes dismissing or refusing to employ someone, and also includes discriminating against them or otherwise injuring them in their employment (by for example demoting them).

Further a person (such as an employer) must not take adverse action against another person (such as an employee) because he or she has engaged in lawful industrial activity (such as belonging to or participating in a union).

In addition, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury.

An employer must not take any adverse action against an employee (or prospective employee) because of his or her race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

General protections dispute applications

If a person has not been dismissed, but alleges that there has been some other contravention of the general protections provisions of the Act, they may make an application to Fair Work Australia (FWA) to deal with the dispute.

If the parties agree to participate, FWA must convene a private conference to deal with the dispute.

FWA may deal with the dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.

If the dispute remains unresolved, the applicant can make an application to a court to deal with the matter. If FWA considers that such an application would not have a reasonable prospect of success, it must advise the parties accordingly.

There is a fee of $60.60 to make a general protections dispute application.

General protections dismissal applications

If a person believes they have been dismissed and alleges that their dismissal was in contravention of the general protections provisions of the Act, they can apply to FWA to deal with the dismissal.

FWA must convene a private conference to deal with the dismissal. FWA may deal with the dismissal by mediation or conciliation, or by making a recommendation or expressing an opinion.

If the dismissal remains unresolved FWA must issue a certificate. The applicant can then make an application to a court to deal with the matter. This must occur within 14 days of the certificate being issued. If FWA considers that such an application would not have a reasonable prospect of success it must advise the parties accordingly.

A general protections dismissal application must be lodged within 60 days of the dismissal taking effect and there is a fee of $60.60 to make the application.

Unlawful termination

If an employee has been dismissed because of discrimination and they are not a national system employee they may make an unlawful termination application to FWA.

An unlawful termination application must be lodged within 60 days of the dismissal taking effect. There is a fee of $60.60 to make an application.