What are general protections?

Under the Fair Work Act, employees have rights called 'General protections'. These include:

• the right to correct pay, leave and other entitlements
• the right to be in a union and take part in union activity (or to not do this)
• the right to take time off work if you are sick or injured
• the right not to be discriminated against according to State or Federal anti-discrimination laws
• the right to make a complaint or enquiry about workplace conditions
• the right to the benefit of an industrial law or instrument (such as an award, enterprise agreement, workplace safety law).

This list only covers some of the more common rights that are protected. You should get legal advice on your particular case to find out if you can use laws about general protections.

Sometimes there can be more than one reason why your employer dismissed you. As long as one of these reasons is a breach of a general protection, it is possible to make a general protections application. Before you make an application, you should get legal advice.

If your employer dismisses you for using or trying to use these rights, you may be able to make a general protections dismissal application to the Fair Work Commission (the Commission).

This topic only deals with dismissals. However, it is possible to make a general protections application even if you have not been dismissed. If you are being treated badly at work for using or trying to use your rights, you should get legal advice straight away.

Sometimes general protections cases are called "adverse action claims." Dismissal is one type of "adverse action." If your employer dismisses you for using or trying to use your rights, or for a discriminatory reason (for example, your race, gender, disability), they have taken adverse action against you.

You have the right to get paid your wages, take leave and get other entitlements at work (for example, meal breaks).

Your employer must not dismiss you for using or trying to use these rights. Also, your employer must not dismiss you for making a complaint or an enquiry about these rights. If they do dismiss you for any of those reasons, it is possible to make a general protections application.

Can your employer dismiss you for asking for wages, leave or other workplace rights?

Your employer must not dismiss you because you had one of these rights or asked for one of these rights:

• to be paid your correct wages or salary
• to take leave (this includes, parental leave, annual leave, sick leave, carers leave, long service leave and bereavement leave)
• to get payments such as overtime or other allowances (for example, tool allowances, uniform allowances, dry cleaning allowances and travel allowances).
• to request flexible hours (if you care for children under school age or a child under 18 with a disability)
• any other entitlements that are in your award or enterprise agreement
• any other rights or entitlements in state or federal laws.

This list does not list every example of a workplace right. There are many other laws that cover what happens at work including laws about health and safety at work and workers compensation. These laws may also give you rights.

Can your employer dismiss you for making a complaint or an enquiry?

Your employer must not dismiss you because you asked questions about your rights or conditions. Your employer also must not dismiss you because you made a complaint about them (for example, a complaint to the Fair Work Ombudsman) or started a legal case.

What can you do?

If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

If you were dismissed because you asked for or used a workplace right, it is possible to make a general protections application to the Fair Work Commission (the Commission).

If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

The Commission may accept late applications, but usually only in exceptional cases. 

The Commission will hold a conference to try and settle the dispute. If this does not solve the problem, you may be able to apply to the Federal Circuit and Family Court of Australia to ask for an order that:

• you be reinstated (get your job back)
• your employer pay a fine (penalty)
• compensation be paid to you.

Which section of the Fair Work Act applies?

Section 340 of the Fair Work Act is the section that protects workplace rights such as the right to wages, leave and other entitlements. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act.

You have the right to be a member of a union or refuse to join a union. You also have the right to take part in certain types of industrial action. If your employer dismisses you because you joined a union or participated in union activity, it is possible to make a general protections application.

Can your employer dismiss you for union activity?

Your employer must not dismiss you because you:

• are a member or officer of a union
• want to be represented by a union
• are not a member or officer of a union
• take part in union activities that are lawful (like organising or promoting a union or going to union events)
• refuse to take part in union activities.

In the Fair Work Act, these are called 'industrial activities'.

Your employer may be able to dismiss you if you take part in union activities that are not lawful. If you are not sure about this, you should get legal advice.

What you can do?

If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

If you were dismissed because you took part in union activities (or refused to take part in union activities), it is possible to make a general protections application to the Fair Work Commission (the Commission).

 If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

The Commission may accept late applications, but usually only in exceptional cases.

The Commission will hold a conference to try and settle the dispute. If this does not solve the problem, you may be able to apply to the Federal Circuit and Family Court of Australia to ask for an order that:

• you be reinstated (get your job back)
• your employer pay a fine (penalty)
• compensation be paid to you.

Which section of the Fair Work Act applies?

Section 346 of the Fair Work Act is the section that protects you from being dismissed because of industrial activity. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act.

Your employer must not dismiss you for discriminatory reasons (for example, race, sex, sexual preference, age or disability). If your employer does this, it is possible to make a general protections application. 

Can your employer dismiss you for a discriminatory reason? 

Under the Fair Work Act, an employer must not dismiss you because of your: 

• race 
• colour 
• sexual orientation 
• breastfeeding 
• gender identity or intersex status 
• age 
• physical or mental disability 
• marital status (that is, whether you are married or not) 
• family or carer's responsibilities 
• pregnancy 
• religion 
• political opinion 
• national extraction 
• social origin. 

There are some exceptions to this rule.  

An employer may be able to dismiss you if: 

1. It is not against the anti-discrimination laws of your state or Australian law. 
Each state has its own anti-discrimination laws and there are also Australian anti-discrimination laws. For example, the Commonwealth Age Discrimination Act, or the NSW Anti-Discrimination Act. Some sorts of discrimination are not included in NSW or Federal laws. For example, it is not unlawful to discriminate on the basis of political opinion or religion in NSW or under Australian law. Also, each of these laws give exceptions so that action that may look like discrimination will be lawful. 

2. You have to have certain attributes or abilities to do a job (sometimes called the 'inherent requirements' of a position).For example, it may be an inherent requirement of a position that you have certain physical abilities (like being able to do heavy lifting). Employers usually have to make reasonable adjustments if your ability to do a job changes. However, this is a complicated area and you should get legal advice if you are in this situation. 

3. The action is taken by a religious institution as a genuine attempt to protect the beliefs and teachings of the religion 
Churches, religious groups and organisations (like religious charities or schools) may be able to discriminate if this is done as part of their religion.

What can you do 

If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you. This will include working out whether the discrimination is covered by one of the exceptions or not. 

If someone dismissed you for a discriminatory reason, it is possible to make a general protections application to the Fair Work Commission (the Commission). 

 If you were dismissed and you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed. 

The Commission may accept late applications, but usually only in exceptional cases. 

The Commission will hold a conference to try and settle the dispute. If this does not end the problem, you can apply to the Federal Circuit and Family Court of Australia to ask for an order that: 

• you be reinstated (get your job back) 
• your employer pay a fine (penalty) 
• compensation be paid to you.  

Which section of the Fair Work Act applies? 

Section 351 of the Fair Work Act is the section that protects you from discrimination. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act and you will need to state the ground of discrimination, for example, 'carer's responsibilities'. 

For more information, see Discrimination at work

You have the right to take time off work when you are unwell.

If your employer dismisses you because you have been absent temporarily because of illness or injury, it may be possible to make a general protections application.

 ​Can your employer dismiss you if you are absent from work because of illness or injury?

Your employer must not dismiss you because you are absent from work temporarily because of an illness or an injury if:

• you have provided a medical certificate, or a statutory declaration, and you have followed any requirements in your workplace instrument (for example, a modern award, enterprise agreement or contract of employment) and
• your absence is for three months or less, or a total of three months or less within a 12 month period (not including any time where you were on paid leave).

If you are getting workers compensation payments, there are other laws that may protect you from being dismissed. If you have been dismissed while you are receiving workers compensation, you should get legal advice.

What you can do?

If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

If you were dismissed because you were temporarily absent because of illness or injury, you may be able to make a general protections application to the Fair Work Commission (the Commission).

 If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

The Commission will hold a conference to try and settle the dispute. If this does not end the problem, you may be able to apply to the Federal Circuit and Family Court of Australia to ask for an order that:

• you be reinstated (get your job back)
• your employer pay a fine (penalty)
• compensation be paid to you.

Which section of the Fair Work Act applies?

Section 352 of the Fair Work Act is the section that protects temporary absence for injury or illness. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act. 

Your employer must not tell you that you are being hired as a contractor when you are really an employee. Also, they must not dismiss you so they can hire you as a contractor doing the same work. Either of these situations are called "sham arrangements" and you may be able to make a general protections application.

What is sham contracting?

A 'sham arrangement' is where your employer tells you that you are an independent contractor when you are really an employee. Your employer must not ask you to enter into a sham arrangement.

Can your employer dismiss you and rehire you as an independent contractor?

Your employer must not dismiss or threaten to dismiss you so they can rehire you as an independent contractor.

What is the difference between an independent contractor and an employee?

Whether a person is an employee or an independent contractor depends on a number of things. Someone who is an independent contractor might:

• supply their own tools or equipment
• do work when and how they want
• have their own workplace
• contract the work out to someone else
• spend some of their income on their own business expenses.

Someone who is an employee might:

• be paid a regular wage or salary
• have tax taken out of their pay by their employer
• have paid holidays and sick leave
• be told what hours they have to work, and where they have to work
• be supplied with tools and equipment
• fill out time sheets
• have superannuation contributions paid by their employer
• be covered for workers compensation by their employer.

If the list above suggests to you that you are an employee, but the person you work for is calling you an independent contractor, this might be a 'sham arrangement'.

What can you do?

If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

The Fair Work Commission (the Commission) will hold a conference to try and settle the dispute. If this does not end the problem, you can apply to the Federal Circuit and Family Court of Australia to ask for an order that:

• you be reinstated (get your job back)
• your employer pay a fine
• compensation be paid to you.

 If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

If you are not sure whether your employer has broken laws about general protections in the workplace, you should get legal advice. If you have been dismissed or are having problems at work, you may have other options, such as:

• unfair dismissal claim if you were dismissed (for more information, see Unfair dismissal)
• discrimination claim (if you have been discriminated against at work)
• bullying claim (if you have not been dismissed but are experiencing workplace bullying).

Which section of the Fair Work Act applies?

Sections 357, 358 and 359 of the Fair Work Act are the sections that apply to sham arrangements. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act.

This topic only deals with dismissals. However, it is possible to make a general protections application even if you have not been dismissed. You should get legal advice if you have been dismissed or are having problems at work. You may also have other options, such as:

• unfair dismissal claim if you were dismissed (for more information, see Unfair dismissal)
• discrimination claim (if you have been discriminated against at work)
• bullying claim (if you have not been dismissed but are experiencing workplace bullying​).

Sometimes general protections cases are called "adverse action claims." Dismissal is one type of "adverse action." If your employer dismisses you for using or trying to use your rights, they have taken adverse action against you.