What are general protections?

Which general protection applies to me?

Under the Fair Work Act, employees have rights called 'General protections' which protect you at work. 

You will need to work out which workplace right applies to your situation when completing a general protections application.

Some common workplace rights include:

• the right to receive correct pay, leave and other entitlements
• the right to join (or not to join) 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 benefits from workplace laws (such as an award, enterprise agreement, workplace safety law)
• the right to disconnect.

This list covers some of the most common workplace rights, but other protected rights may also apply.

If your employer treated you badly or dismissed you because for using or trying to use your rights, they may have broken the law.  This is sometimes called ‘adverse action’.

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.  

If your employer dismisses you  because you asked for or used a workplace right, it is possible to make a general protections dismissal application to the Fair Work Commission within 21 days of the date you were dismissed.

It is possible to make a general protections application even if you have not been dismissed.

When you fill in your application, you will need to choose the right section that matches your situation. The sections below explain the most common types of protections and when they apply.

If you are not sure which protection applies to you, you should get legal advice.

Wages, leave and other workplace rights

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

This includes things like:

• to be paid your correct wages or salary
• to take leave including parental leave, annual leave, sick leave, carers leave, long service leave, family and domestic violence 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.

For more information, see Wages and entitlements.

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. For more information, see Work health and safety.

Your employer must not treat you badly or dismiss you because you:

• asked for your entitlements, or
•  made a complaint or asked questions about your rights.

If this happens, you may be able to make a general protections application to the Fair Work Commission. 

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.

For more information, see General protections dismissal.

Union activities

You have the right to:

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

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

Your employer must not treat you badly or dismiss you because of your involvement (or non‑involvement) in a union.

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.

If you were dismissed because you joined a union or took part in union activities (or refused to take part in union activities), you may be able to make a general protections dismissal application to the Fair Work Commission within 21 days of the date you were dismissed.

Section 346 of the Fair Work Act which 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.

For more information, see General protections dismissal.

Discrimination

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

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

This is called discrimination.

In some situations, an employer may be allowed to treat employees differently or dismiss an employee without breaking discrimination laws. For example:   

• It is not against the anti-discrimination laws of your state or Australian law . Discrimination laws are different across Australia and some laws contain exceptions.
• a person cannot perform the essential requirements (inherent requirements) of the job, even with reasonable adjustments. For example, needing a certain level of physical ability. 
• the law allows the action in specific situations, For example a religious organisation (like a charity or schoo) acting in accordance with its religious beliefs in circumstances allowed by law.

If your employer dismissed you for a discriminatory reason, you may be able to make a general protections dismissal application to the  Fair Work Commission within 21 days of the date you were dismissed. In your application: 

• refer to section 351 of the Fair Work Act , which is the section that protects you from discrimination, and 
• you will need to state the ground of discrimination, for example, 'carer's responsibilities'. 

Before you make an application, you should get legal advice.

For more information, see Discrimination at work.

Absence because of illness or injury

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

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 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.  

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. 

For more information, see General protections dismissal.

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

Sham contracting arrangements

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, or
• dismiss, or threaten to dismiss, you so they can rehire you as a independent contractor to do the same work.

Either of these situations are called "sham arrangements". If you are dismissed, you may be able to make a general protections dismissal application to the Fair Work Commission.

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.

Are you an employee or a contractor?

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'.

Other options

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.