General protections

Where can I find i​​nformation about my rights at work?

Your rights at work are covered in:

• any policies that operate in your workplace
  
• any award, enterprise agreement or industrial instrument that applies to your work
  
• your contract (verbal or written)
  
• the Fair Work Act 2009 (Cth), and any other laws that apply, for example, State or Federal discrimination laws
  
• the national employment standards.

The Fair Work Ombudsman can help you identify your workplace rights, especially those contained in your award or Enterprise agreement.

What rights do I have ​under the Fair Work Act 2009 (Cth)?

You have a number of rights that are protected by the Fair Work Act 2009 (Cth), called general protections. This includes your right to:

• make enquiries or complaints about your workplace conditions
  
• the full benefits of your award or industrial agreement or an industrial law
  
• be part of any process or proceedings under a workplace law or agreement
  
• be a member or office holder of a union, or not to be a member or office holder of a union
  
• protection against unlawful discrimination
  
• parental leave
  
• be absent for voluntary emergency duties
  
• be temporarily absent from work for three months or less (within the past 12 months) and excluding paid sick leave due to illness or injury (in certain circumstances)
  
• be appointed and perform the functions of a Work, Health and Safety Officer or Harassment Officer, and
  
• protection from being forced or pressured to work as a contractor when you are really an employee. 
  

For more information, see What are general protections? on the My problem is about section of our website.

What are the national e​mployment standards?

The national employment standards set out the 11 minimum employment entitlements for employees. 

For more information, see National Employment Standards on the Fair Work Ombudsman website.

What are general pr​otections?

General protections are the rights employees have that are protected under the Fair Work Act 2009 (Cth).

For more information about these rights, see FAQ below 'What rights do I have under the Fair Work Act?'

For more information, see What are general protections? on the My problem is about section of our website.

What is adverse ​action?

Adverse action is when your employer does something or fails to do something which breaches one or more of the general protections under the Fair Work Act 2009 (Cth). Examples of adverse action may include:

• your employer changing work conditions to your detriment
• taking any action which injures your wellbeing at work
  
• being discriminated against
• being refused legal entitlements such as parental leave.

Adverse action also includes where a prospective employer does not hire you, for example, because of a discriminatory reason.

What can I do if my ​employer breaches my workplace rights?

If your employer breaches your rights under the Fair Work Act 2009 (Cth), it is called adverse action.

If you are still working for your employer and have not been dismissed, you can:

• discuss your concerns with your manager or supervisor - often this can resolve the situation without you needing to make a formal complaint or legal claim
  
• make a formal written complaint at your work - you should check any policies that apply in your workplace, and speak to Human Resources if you can or check the grievance or dispute resolution process with a manager or supervisor
  
• complain to the Fair Work Ombudsman
  
• apply to the Fair Work Commission for dispute resolution or a general protections non-dismissal dispute conference (this is usually a good option before applying to the courts for an order)
  
• apply to the Federal Circuit and Family Court of Australia or Federal Court of Australia for a general protections order.

If you have been discriminated against at work, and the discrimination is against the law, you may also have other options. 

For more information, see the Discrimination at work - Frequently Asked Questions topic.

There are also additional options if a crime has been committed, or if you have fears for your safety. 

For more information, see the Apprehended Violence Orders topic or Bullying and harassment - Frequently Asked Questions.

Deciding what to do can be difficult and stressful. Getting legal advice may help you work out what option is best in your circumstances, as you usually can't make more than one type of legal claim at the same time. There are also time limits that apply, and these can vary depending on what you want to do.

If you have been dismissed from work, different options apply​. For more information, see the Termination topic.

Can the Fair Work Om​​​budsma​​n help me?

The Fair Work Ombudsman can provide information about your employment conditions and can help with certain types of complaints. For example, they can take complaints about leave or employment conditions, and discrimination.

For more information, see Ask for our help with a workplace problem on the Fair Work Ombudsman website.

How do I make a general protections dispute application to the Fair Wor​k Commission?

If you have not been dismissed but believe that your general protection rights under the Fair Work Act 2009 (Cth) have been breached, you can apply to the Fair Work Commission to deal with your dispute.

To apply, you need to complete a Form F8 - General protections application not involving dismissal and pay the fee. 

For a copy of the form, see Forms and Apply or lodge on the Fair Work Commission website.

For more information, see How to apply in General protections dismissal on the My problem is about section of our website 

Before making an application, you should get legal advice about the best option for resolving your dispute.

Is there a time lim​it?

There is no time limit to apply to the Fair Work Commission to deal with a general protections dispute unless you have been dismissed from your work. 

For more information about the time limits related to dismissals, see the Termination topic.

What happens after I apply to t​​he Fair Work Commission?

After you apply to the Fair Work Commission to deal with your dispute, they will send a copy of your application to your employer. Your employer must complete a response to your application. They must file it with the Fair Work Commission and serve you with their response within seven days of when they were served with your application.

The Fair Work Commission will arrange a conference between you and your employer, but only if you both agree to participate. You should receive a Notice of Listing - a letter that will tell you the date, place and time the matter is listed.

For more information, see General protections dismissal on the My problem is about section of our website.

What is a conferen​ce?

A conference is a private and confidential meeting that is held between you, your employer and a Fair Work Commission Member. 

The Member helps you and your employer talk about the issues to try and resolve the dispute. At the conference you can explain the reasons why you believe your general protections rights have been breached, and what outcome you want. 

The Member can recommend an outcome or give you their opinion about the dispute, but can't make a binding order or decision. 

It is a good idea to prepare for a conference. Being organised can help you to be clear when talking to your employer and the Member. If you are not sure about how to prepare, you should get legal advice.

For more information, see General protections dismissal on the My problem is about section of our website.

What if my employer refus​es to participate in the conference?

A conference can only be held if you and your employer agree to participate in the process. If your employer refuses, you should get legal advice about your options, including the option to apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia to deal with your dispute.

What can I do to prepare fo​​​r the conference?

It is a good idea to prepare for the conference. Being organised can help you to be clear when talking to your employer and the Commission Member. You should:

• check the date, time and place of your conference
  
• read through your application and your employer's response and make note of any issues you want to raise at the conference
  
• understand the law that applies to your situation - it may be worth getting legal advice to help you understand the legal issues involved in your case
• speak to your union about what support they can provide you, if you are a member
  
• think about what outcome you want from the conference
  
• ensure you have all relevant documents - this may include copies of your application, your employer's response, any relevant workplace policies, your award or industrial agreement, relevant letters, faxes and emails.

You can write a submission. This is a written document that outlines:

• what rights you believe have been breached and how they were breached
• what you have tried to do to resolve the situation
• what you want and your reasons
• the information or details that support your case.

You can read from this document at the conference when the Fair Work Commission Member asks you to explain your application.

You can also prepare a chronology of what has happened. A chronology is a list of events in date order. You can include dates, times, places, references to key documents and any witnesses.

For more information, see Step by step guide - Preparing for conciliation on the My problem is about section of our website.

If you are not sure how to prepare, you should get legal advice. 

What if I need an int​erpreter?

If you need an interpreter and did not state or mark this on your application form, you should contact the Fair Work Commission to ask for an interpreter to be arranged for your conference. 

An interpreter can normally be arranged for free. 

It is best to contact the Fair Work Commission about this before the date of your conference.

Can a lawyer represen​t me?

If you want a lawyer to represent you, you will need to get permission by the Member at the Fair Work Commission, unless the lawyer is provided by your union. 

If you want a lawyer to represent you, you will have to pay their costs.

What if I reach an agreem​ent with my employer at the conference?

If you reach an agreement with your employer at the conference you may be asked to sign a settlement agreement. Before signing anything, you should make sure that:

• you understand the agreement completely
• it reflects what was agreed, and
• it does not affect any future rights or claims you may have.

For more information, see Conciliation in General protections dismissal, on the My problem is about section of our website.

Before signing the agreement, you should get legal advice.

What if the dispute is not​ resolved at the conference?

If you and your employer can't come to an agreement, the Commission must issue you with a certificate. 

If you have a certificate from the Commission, and you want to continue your case, you may be able to apply to the:

• Commission for an arbitration hearing if you and your employer agree, or
• Federal Court of Australia or Federal Circuit and Family Court of Australia to start a court case.

You must apply to the Commission, the Federal Court of Australia or the Federal Circuit and Family Court of Australia within 14 days of the Commission issuing the certificate.

Before applying to the Federal Circuit and Family Court of Australia or Federal Court of Australia, you should get legal advice.

For more information, see Conciliation, in General protections dismissal, on the My problem is about section of our website.

Can I appeal if I lose my case at the Fair Work Commission?

If you think the Fair Work Commission (the Commission) has made a mistake in your case, you may be able to ask permission to appeal within 21 days.

You may be able to appeal if you think the Commission made a mistake about the law or about what happened. This is called an 'error of fact'.

Before you appeal, you should get legal advice. If the Commission thinks that your appeal case was clearly weak and you had no chance of winning, it can order you to pay the respondent's legal costs in the appeal case.

For more information, see Appeals on the My problem is about section of our website.

Can I apply to the Federal Circu​​it and Family Court of Australia?

You can apply to the Federal Circuit and Family Court of Australia if you are claiming that your employer has breached a right you have as an employee under the Fair Work Act 2009 (Cth). You do not have to apply to the Fair Work Commission before applying to the Federal Circuit and Family Court of Australia unless you have been dismissed from work.

However, unless it is urgent, it may be a good idea to apply to the Fair Work Commission first as it has very useful conciliation and mediation services that can be helpful in resolving your dispute. Court rules and procedures may be legally complex.

For more information, see Going to the Federal Circuit and Family Court of Australia on the My problem is about section of our website.

The Federal Court of Australia can also hear general protections disputes, but they generally deal with more complex cases. Before applying to the Federal Court of Australia, you should get legal advice.

How do I ap​ply?

To apply to the Federal Circuit and Family Court of Australia to deal with a general protections dispute you need to:

• complete a Form 4 - Claim under the Fair Work Act 2009 alleging contravention of a general protection - paragraph 45.08(b)
• pay a fee. 

For more information, see General federal law fees on the Federal Circuit and Family Court of Australia website. 

In some cases this fee can be waived, for example, if you are under 18 or experiencing financial hardship. 

For more information, see Exemption From Paying Court Fees on the Federal Court of Australia website.

For more information, see Step by step guide-Applying to the Federal Circuit and Family Court of Australia on the My problem is about section of our website.

​What should I put​ in my application?

In your application you will need to clearly state how you think your employer has breached your rights under the Fair Work Act 2009 (Cth).

For more information, see Step by step guide - Applying to the Federal Circuit and Family Court of Australia on the My problem is about section of our website.

You should consider getting a lawyer to help you with your application. What you put in your application can affect your case.

What happens after I​ apply?

After you apply to the Federal Circuit and Family Court of Australia to deal with a general protections dispute, you will need to arrange for your application to be served on your employer.

After your employer is served with your application, they must file and serve you with their response within 28 days. The Federal Circuit and Family Court of Australia will then send you details of your first court date, including the time, date and place where your case will be heard.

The process in the Federal Circuit and Family Court of Australia includes:

• a directions hearing - where the Court or Registrar can make orders or directions about how your case will proceed, for example, they might make an order for you to attend mediation with your employer
• a hearing - where you and your employer get to present your side of the story and a decision is made about your case.

For more information, see Going to the Federal Circuit and Family Court of Australia on the My problem is about section of our website.

Before going to court, you should get legal advice. A lawyer can help you prepare for court and can explain the process in more detail.

How do I serve my app​lication on my employer?

After you apply to the Federal Circuit and Family Court of Australia to deal with a general protections dispute, you will need to arrange for your application to be served on your employer. The rules for service are very strict and can vary depending on whether your employer is a company, an incorporated or unincorporated association, registered or unregistered business or partnership.

You can find out the registered address or principal place of business of a company by doing a search on your employer's details at the Australian Securities and Investment Commission.

If you want to serve the application on your employer's lawyer, you should get legal advice about other rules that apply.

If you are not sure about what type of organisation your employer is, you should get legal advice about how to serve your application.

What orders can the Federal Ci​rcuit and Family Court of Australia make?

The Federal Circuit and Family Court of Australia can make an order for:

• an injunction to stop, restrain or remedy certain things from happening
• compensation
• a fine to be paid (the amount of the fine is specified in the rules).

For more information, see The decision in Going to the Federal Circuit and Family Court on the My problem is about section of our website.

Should I ​get a lawyer?

Before applying to the Federal Circuit and Family Court of Australia, you should get legal advice. A lawyer may be able to help you to:

• understand whether you have a case
• fill in the application form
• understand the grounds of your application
• consider the strengths and weaknesses of your case
  
• prepare for court
• understand the Courts rules and how to best present your case.

If you decide to get a lawyer to represent you, you will have to pay their legal costs. In limited circumstances you may be able to apply for your costs to be paid by the other party if you are successful with your case, but you will need to speak to your lawyer about this.

Will I have to pay costs if I los​​e the case?

In most cases each party must pay their own legal costs. In limited circumstances the Federal Circuit and Family Court of Australia can make a cost order against you if your application is unsuccessful. For example, you may be ordered to pay your employer’s costs if you commenced legal proceedings vexatiously or without reasonable cause, or unreasonably refused to participate in a conference before the Fair Work Commission before making a general protections non-dismissal dispute application to the Court.

For more information, see Costs in Going to the Federal Circuit and Family Court on the My problem is about section of our website.

Before starting a court case, you should get legal advice.

Can I appeal if I lose the case?

If you are unhappy with the Court’s decision, you may be able to appeal within 28 days of the decision.

You may be able to appeal a decision if you think the Court made a mistake about the law. This is called an 'error of law'.

You can’t appeal if you think the Court wrongly decided the facts. This is called an ‘error of fact’.

Before you appeal, you should get legal advice. If your appeal is dismissed, you may be ordered to pay the other party’s legal costs.

For more information, see Appeals on the My problem is about section of our website.