General Protections is a type of application that can be made to the Fair Work Commission in respect of unfair or discriminatory treatment in the workplace. General Protections seek to protect employees from discrimination, sexual harassment, or being treated negatively due to exercising a workplace right. There are two types of General Protections applications:
There are two requirements to a General Protections application, regardless of whether or not dismissal has occurred. Firstly, there must be either:
- Discrimination
- An exercise of a workplace right
- Industrial activity
Secondly, and in response to the first requirement, the employee has been subjected to adverse action.
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21 Days To Lodge A Claim If Dismissed
If you are still in employment ans wish to go to the Fair Work Commission you can go at anytime. It is recommended to gain advice on lodging a Fair Work claim. We offer a free initial consultation over the phone. We only work with employees.
Discrimination
- Race
- Colour
- Sex
- Sexual orientation
- Age
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Pregnancy
- Religion
- Political opinion
- National extraction
- Social origin
Discrimination is defined as different or less favourable treatment due to a particular personal attribute. General Protections provisions protect the following specific attributes:
Sexual Harassment
Employees sexually harassed in the workplace can also seek protection and a remedy through General Protections. Sexual harassment is a form of sex discrimination.
Exercise of a Workplace Right
Workplace rights include any rights you are usually entitled to exercise during the course of your employment. Workplace rights include:
- Making complaints or enquiries about your employment (either formally or informally)
- Commencing court action or another proceeding under a workplace law or instrument
- Receiving a benefit, role or responsibility under a workplace law, instrument, or an order under an industrial body.
Some examples of making an enquiry about your employment:
- Asking about your hours or pay
- Requesting annual leave, sick leave or carer’s leave
- Requesting flexible work arrangements, such as due to family responsibilities
- Reasonably asking for a pay rise
- Asking questions about your work and what is expected of you
Some examples of making a complaint about your employment:
- Making a complaint about the conduct of another employee, manager or client
- Making a complaint about your workload, hours or pay
- Making an informal complaint to your manager about a colleague who is bullying, sexually harassing, or discriminating against you
- Making a formal complaint to Human Resources about bullying, sexual harassment or discrimination
- Making a formal complaint to an external body like the Fair Work Commission or a human rights organisation about bullying, sexual harassment or discrimination
Industrial Activity
Industrial activity includes:
- Becoming a member of an industrial association, such as a union or employer association
- Not becoming a member of an industrial association
- Representing or advancing the interests or beliefs of an industrial association
- Participating in industrial action
- Refusing to participate in industrial action
Sham Contracting Arrangements
General Protections provisions also protect employees from sham contracting arrangements, which is when an employee is falsely informed by their employer that they are a contractor. There are certain factors that point towards a person being an employee, regardless of whether their employer calls them a ‘contractor’.
Employers cannot:
- Establish a sham contracting arrangement
- Dismiss or threaten to dismiss an employee to hire them as an independent contractor performing substantially the same work
Adverse Action
Adverse action is any unfair or less favourable treatment to which an employee is subjected as a result of exercising, or proposing to exercise, a workplace right. It must be real and substantive. Adverse action can take many forms and varies in each case. Adverse action may typically include:
- Dismissal
- Bullying
- Sexual harassment
- Being treated differently from other employees
- Being isolated or ostracised in the workplace
- Changing or reducing work hours to your disadvantage
- Changing your job to your disadvantage
- Having pay withheld
- Not being permitted to use your legal entitlements, such as refusing sick leave or annual leave
- Not taking any action in response to a complaint, meaning that existing unfair behaviour continues
- Not being hired
Frequently Asked Questions
Who is eligible to make a General Protections application?
General Protections offers a much wider scope of application than Unfair Dismissal. It is not required that you are a permanent employee or have completed a minimum period of employment. Therefore, General Protections laws also protect persons who have not been employed or received a particular benefit because of the exercise of a workplace right or discrimination.
The following categories of persons can make a General Protections application:
- Employees (and prospective employees)
- Independent contractors (and prospective independent contractors)
- Casual employees have access to general protections. In many cases they do not have access to unfair dismissals.
However, there is one restriction on employees being able to make a General Protections application, which is that they must be employed in the national system. This may be difficult to ascertain, but it usually means that if you are a State government employee you cannot pursue General Protections (or Unfair Dismissal) in the Fair Work Commission. Unless you are in Victoria you can issue a general protection as there is no state government regulation. Queensland the state government has general protections for state government employees. Eligibility may vary from state to state, so if unsure give us a call on 1300 766 700 and we will be able to indicate whether you are an eligible employee.
What is the difference between General Protections and Unfair Dismissal?
General Protections applications are typically made instead of Unfair Dismissal applications in any of the following circumstances:
- You are ineligible for Unfair Dismissal
- You have suffered non-economic harm (like a psychological injury) and would like to seek damages
- The circumstances of your case better fit General Protections requirements.
Ineligibility for Unfair Dismissal may be due to:
- Not meeting the minimum employment period
- Earning a base annual salary over the cap of $153,600
- Being a casual employee without regular and systematic employment
In a sense, General Protections can be considered a ‘back-up’ to an Unfair Dismissal application, provided you meet the adverse action requirements.
What does a General Protections application involve?
To pursue a General Protections application, the relevant Fair Work Commission form (F8 or F8C) must be completed, ensuring that all the requirements of a General Protections claim are met. Following the lodgement of the application, the Fair Work Commission arranges a conciliation conference, which is usually held over the phone. This is in effect a negotiation, and the parties to the conference include the Applicant (the employee) and the Respondent (the employer), along with any representatives they may choose to have, as well as a conciliator from the Fair Work Commission acting as a third party to assist the parties reach a resolution.
What outcome can I get?
You are entitled to be represented in your Fair Work Commission matter by an independent representative, such as A Whole New Approach. Having a representative simplifies the process and makes it easier to navigate what can appear to be a new and sometimes confusing process. By retaining A Whole New Approach, you can maximise your chances of achieving a successful outcome. We would draft the entire General Protections application to an impeccable standard, manage all correspondence with the Fair Work Commission and your employer, and represent you in the conciliation conference. Representation gives you access to A Whole New Approach’s master negotiation skills and industry-leading experience in General Protections matters, and by pursuing your case through us, you are putting your application in safe hands. We take all the guess-work out of the application and ensure your employer takes your matter seriously. We negotiate firmly and fight to get you the compensation you deserve! Call us now on 1300 766 700 for a free consultation.
Should I get a representative?
By pursuing a General Protections application you can seek:
If dismissed:
- Reinstatement
- Compensation for a reasonable period of lost income
- General damages for non-economic pain and suffering
If still employed:
- An exit package, consisting of compensation, a resignation, and general damages where applicable.
- Continuing employment and resolution of the issue.