What is a general protections (adverse action) claim in Australia?

A general protections claim is made under Part 3-1 of the Fair Work Act 2009 (Cth). It is unlawful for an employer to take 'adverse action' against a person because of a protected reason. Adverse action against an employee includes dismissing them, injuring them in their employment, altering their position to their prejudice, or discriminating between employees (s.342). Protected reasons include exercising a workplace right, making a complaint or inquiry about employment, union or industrial activity, a protected attribute (such as race, sex, age, disability, pregnancy or carer's responsibilities under s.351), or a temporary absence from work due to illness (s.352). Unlike unfair dismissal, there is no minimum employment period and no small-business or high-income exclusion.

How long do I have to lodge a general protections claim?

If the general protections claim involves a dismissal, you must lodge Fair Work Commission Form F8 within 21 calendar days of the dismissal taking effect (Fair Work Act 2009, s.366). This is a strict deadline that the Commission can extend only in exceptional circumstances. If the claim does not involve a dismissal, there is no 21-day Commission deadline — you can apply to the Commission to deal with the dispute (Form F8C, s.372) or make a court application, which is subject to a 6-year limitation period (s.544).

What is the difference between general protections and unfair dismissal?

Unfair dismissal (Part 3-2) asks whether a dismissal was harsh, unjust or unreasonable, and requires a minimum employment period (6 months, or 12 months for small businesses). General protections (Part 3-1) ask whether adverse action was taken because of a protected reason — there is no minimum employment period, and the protections cover workers who have not been dismissed, as well as job applicants. A key advantage of general protections is the reverse onus in s.361: the employer must prove the adverse action was not taken for the protected reason. Both dismissal-based claims share the same strict 21-day Fair Work Commission deadline.

Can I make a general protections claim if I haven't been dismissed?

Yes. Part 3-1 of the Fair Work Act 2009 prohibits adverse action against an employee because of a protected reason even where there is no dismissal — for example, a demotion, a cut to hours or pay, disciplinary action, or being sidelined. You can apply to the Fair Work Commission to deal with the dispute (Form F8C) or make a court application. There is no 21-day deadline where there is no dismissal, but the underlying civil remedy provisions carry a 6-year limitation period (s.544). Job applicants who are refused work for a protected reason are also covered.

What remedies are available for a general protections claim?

A court can order compensation (including for economic and non-economic loss), civil penalties against the employer, injunctions, and reinstatement where a dismissal was involved. The Fair Work Commission first holds a conference to try to resolve a dismissal dispute (s.368); if it is not resolved, the matter can proceed to the Federal Court or the Federal Circuit and Family Court of Australia. Because remedies and penalties can be significant and the law is fact-specific, get legal advice on your situation.

General Protections (Adverse Action) Eligibility Checker

Two questions to find out whether you may have a general protections claim under Part 3-1 of the Fair Work Act 2009 (Cth), which pathway applies, and the deadline. Flags the strict 21-day Form F8 deadline where a dismissal is involved. Not legal advice.

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Liquid Employment Lawyers is a paid legal service and our referral partner, not free Fair Work advice. FairWork Mate may receive a referral fee from Liquid Legal. Tell them what has happened and a member of their team will call you back. For free general guidance, use our tools or call the Fair Work Ombudsman on 13 13 94.

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