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Title: Unraveling the Complexities of General Protections in the Australian Workplace

Australia’s Fair Work Act houses a collection of provisions, known as general protections, safeguarding national system employees, employers, independent contractors, and certain individuals and organizations. These protections offer a preferred alternative to unfair dismissal claims as they cover a broader range of circumstances that can constitute adverse action, making the action unlawful.

The intricacies of lodging a general protections claim often necessitate expert legal advice to circumnavigate potential errors. If you think you might have a legitimate claim, you can reach out to us for assistance.

The Spectrum of General Protections:

General protections cover a vast scope. While the most frequently lodged claim is dismissal-related, these protections also span areas such as:

  • Safeguards concerning workplace rights,
  • Safeguards concerning involvement in industrial action,
  • Protection against discrimination, and
  • Protection against sham arrangements.

Who Can Benefit from General Protections?

The beneficiaries of the Fair Work Act 2009’s general protections include:

  • Current employees and prospective ones,
  • Independent contractors and prospective contractors,
  • Employers, principals (and potential employers and principals), and
  • Industrial associations.

However, claims must be relevant to a constitutional-covered entity, such as a

Understanding Adverse Action:

Adverse action embodies several types of employer conduct, including:

  • Employee dismissal,
  • Employee injury during employment,
  • Altering the employee’s position to their disadvantage, or
  • Discrimination against the employee.

If these scenarios don’t mirror your situation, we recommend contacting us to discuss your unique circumstances.

Commonly, general protections claims revolve around workplace rights, where an employer cannot take adverse action against an employee exercising or intending to exercise a workplace right. For instance, dismissing an employee for raising a complaint about wages and entitlements is prohibited.

For a General Protections Application involving dismissal, a strict timeframe applies—employees must lodge their claim within 21 days from the dismissal’s effective date. If you miss this window, seeking immediate legal advice is crucial. Under ‘exceptional circumstances,’ we might be able to aid you in pursuing a General Protections claim beyond the 21-day timeframe.

What Lies Ahead?

The subsequent process hinges on whether the dispute involves a dismissal. Since the majority of general protection applications concern dismissal, we’ll outline this process. For non-dismissal cases, please reach out to discuss the relevant process.

Following the submission of a general protections application (with dismissal) to the Fair Work Commission, the case is usually scheduled for a telephone conciliation. This stage presents an opportunity for both parties to resolve the dispute. Representation is allowed during telephone conciliations. If you need representation as paid agents, please contact us.

If the dispute remains unresolved post-telephone conciliation, the Fair Work Commission member will guide you through your future options. These may involve arbitration or a hearing before the Federal Circuit Court of Australia. If the Commission member deems that reasonable attempts to resolve the dispute have been unsuccessful and are likely to remain so, they will issue a Certificate to that effect. You then have the option to file a new claim (known as a General Protections Court Application) in the Federal Circuit Court of Australia.

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