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Simplifying Australia’s General Protections and Adverse Action Claims: Your Go-To Guide

If you’re an Australian employer, it’s absolutely essential to grasp the intricacies of general protections and adverse action claims. While most are aware of the potential for unfair dismissal claims, the danger posed by adverse actions against an employee or a violation of general protections is often overlooked.

The Fair Work Act 2009 (Cth), a comprehensive legislative statute, provides an all-encompassing shield, not just for existing employees but also for prospective hires and independent contractors. Interestingly, it’s worth noting that this law also caters to employers, though claims from this side of the table are somewhat uncommon.

Who’s Covered Under this Legal Framework? This legislative structure casts a wide net of protection over:

Employers and employees Principals and independent contractors Industrial associations such as trade unions or their members This blog, however, will predominantly focus on adverse actions against employees.

Deciphering the General Protections Under the Act, numerous safeguards are offered to employees, which include:

Right to exercise workplace rights Liberty to participate or abstain from industrial activities Guarantee against discrimination Shield against deceptive contracting arrangements Security against coercion pertaining to the exercise of workplace rights Safeguard against undue influence concerning agreements under National Employment Standards or relevant industrial agreements Protection against dismissal during temporary absence due to illness or injury Any form of adverse action is strictly prohibited against those exercising or intending to exercise their workplace rights.

Understanding Workplace Rights Workplace rights span across an extensive array of work-related rights, protected under the law, such as:

Rights stemming from a workplace law or order issued by an industrial body Right to perform duties or responsibilities under a workplace law or an industrial entity Right to initiate or partake in a procedure or process under a workplace law or instrument Right to make a complaint or inquiry to ensure adherence to a workplace law or instrument Right to make a complaint or inquiry related to employment Breaking Down Adverse Action Illegal adverse action occurs when an action is taken against an employee for forbidden reasons, like hindering the exercise of a workplace right. This might include:

Termination of the employee Inflicting injury, including psychological, on the employee during their employment Unfavorably altering the employee’s position Discrimination between the employee and other colleagues For job seekers, adverse action might appear as refusal of employment or discrimination in terms of job offer conditions.

Per Section 361 of the Act, employers defending an adverse action claim bear the reverse onus of proof. The court assumes the action was executed for the reasons cited unless the employer can provide proof to the contrary.

The Cost of Missteps If an employer is guilty of adverse action, they may be held liable for a general protections claim. Comparable to an unfair dismissal claim, a general protections claim initially lands at the Fair Work Commission’s doorstep. If unresolved, it can further be escalated to the Federal Circuit and Family Court or Federal Court of Australia.

Contrary to unfair dismissal claims, general protections cases have no ceiling on compensation awarded. Furthermore, the Court can levy civil penalties not only on the employer but also on any individual involved in the breach.

To secure a win in a general protections claim, an employee must prove that they exercised a workplace right, experienced adverse action, and that a causal link exists between the two. Once accomplished, the onus shifts to the employer to prove that the action wasn’t executed for the reasons put forward by the employee.

Mapping Your Legislative Terrain

Although many such disputes often find resolution through negotiation, those reaching court have led to substantial payouts. It’s imperative to note that any employee, irrespective of their duration of service or earnings, can file a claim in this jurisdiction. Hence, for employers, gaining a comprehensive understanding of this legal environment is key to effectively steer clear of potential hazards.

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