Protecting your workplace rights and entitlements
Commonwealth employment law gives workers some general protections in the workplace. The law sets out your rights and entitlements including:
- protection from discrimination
- protection from sham contracting arrangements
- taking time off work when you’re sick or injured
- belonging (or not belonging) to a trade union
- becoming an employee representative
- freedom to participate in industrial activities
- making a complaint or inquiry about your employment (to your employer or another organisation).
If you think your employer has breached your general protections by taking or threatening to take adverse action against you, you can make an application to the Fair Work Commission. Time limits apply. Get legal advice.
The law sets out your rights and entitlements in the workplace, including :
- protection from discrimination—for example adverse action because of your:
- race
- colour
- sex
- sexual preference
- age
- physical or mental disability
- marital status
- family or carer's responsibilities
- pregnancy
- religion
- political opinion
- national extraction or social origin.
- protection from Employment law and your rights
- taking time off work when you’re sick or injured
- belonging (or not belonging) to a trade union
- becoming an employee representative
- freedom to participate in industrial activities
- making a complaint or inquiry about your employment (to your employer or another organisation).
Adverse action
It’s against the law for someone (eg your employer or a fellow employee) to take or threaten to take adverse action against you because you:
- have one of the above rights and entitlements
- exercise one of those rights or
- propose to exercise the right.
Adverse actions include:
- dismissing you
- demoting you
- not giving you your legal entitlements
- changing your job to your disadvantage
- treating you differently than others
- refusing to hire you.
Who is covered by general protections law?
Unlike unfair dismissals, you can make a general protections claim regardless of how long you were employed or the size of your employer’s business.
General protections apply ( but are not limited) to :
- an employee (including prospective employees)
- independent contractors (including prospective independent contractors)
- labour hire workers
In relation to:
- a business that is a constitutional corporation (eg a proprietary limited company)
- the Commonwealth Government
- a Commonwealth authority
- a body corporate incorporated in a territory
- an organisation.
If you’re not sure if you’re covered, get legal advice.
You’re not covered by general protections law if you’re employed under state employment law. You may be entitled to make an unlawful termination claim if you’ve been dismissed. Get legal advice from a private lawyer.
Making a general protections application
If you think your employer has breached general protections law, you can make a general protections application to the Fair Work Commission (FWC).
You should get legal advice before making an application as there may be other ways to resolve your dispute and a lawyer can give you advice about your options. If you make a general protections application, you might not be able to take other forms of legal action to resolve your dispute (eg unfair dismissal claim or discrimination claim).
Once the FWC has received your application, it will schedule a conciliation conference. Your employer will be given a copy of your application and must make a written response.
The purpose of a conciliation conference is to help you and your employer resolve your dispute. If you’re still employed the FWC will only hold a conference if your employer agrees.
The FWC has a guide to the general protections conference process.
You’ll have to pay a fee when you file your general protections application, but you can make a request to have the fee waived if it would cause serious hardship.
General protections applications about dismissals
If the matter isn’t resolved at the conciliation conference, and the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then they will issue a certificate to that effect. Once the certificate is issued, you can choose to make an application to the Federal Circuit and Family Court of Australia (or Federal Court of Australia) or to have the matter arbitrated by the FWC (by agreement between both parties).
You have 14 days from the date the certificate was issued to apply to the Court or to apply for arbitration. You should get legal advice.
General protections applications while you’re still employed
If the matter isn’t resolved at the conciliation conference and the FWC thinks it won’t be successful, they should let you know.
If a conference wasn’t held (because your employer didn’t agree to participate) or if it was held and there was no agreement reached, you can make an application to the Federal Circuit and Family Court of Australia (or Federal Court of Australia) to deal with the matter. You should get legal advice.
Time limits
If your general protections claim relates to a dismissal, you must apply to the FWC within 21 days from the date the dismissal took effect.
If your general protections claim is not about a dismissal, you have 6 years from the day of the breach to make a claim in the Federal Circuit and Family Court of Australia or Federal Court of Australia. You should make a claim as soon as possible. Get legal advice.
Do I need legal advice?
You may need legal advice if you:
- think there’s been a breach of an employment contract, award or agreement
- need to recover unpaid wages, benefits or entitlements
- think you’ve experienced bullying, harassment or discrimination in your workplace
- think your employer has breached your general protections
- think you are employed under a sham contracting arrangement
- have any other genuine dispute with a current or former employer.
How to get legal advice
We may give legal advice to employees on employment matters.
We can’t give legal advice:
- about enterprise bargaining or modern awards
- about breach of contract matters
- to state and local government employees about unfair dismissal or unlawful termination
- to employers or genuine independent contractors.
If we can’t help you, we may be able to refer you to other services that may be able to help.
Caxton Legal Centre—Employment law advice service can give advice about unfair, unlawful and constructive dismissal, workplace bullying and discrimination matters. Contact them to find out if they can help.
LawRight Self Representation Service (Federal) gives legal advice and help to people involved in civil proceedings in the Federal Circuit and Family Court of Australia or Federal Court for matters involving employment. They may help with drafting documents and correspondence relating to your legal matter. They don’t provide representation.
LGBTI Legal Service gives free legal advice and information to LGBTI clients, including legal advice relating to employment.
Queensland Law Society can refer you to a private lawyer who can give advice to employees, employers and contractors on employment and industrial relations law, and may be able to represent you.
Who else can help?
The following organisations may be able to help. They don’t give legal advice.
Commonwealth Fair Work Ombudsman gives information about workplace laws, rights and obligations, and investigates complaints and suspected breaches of workplace laws, awards and agreements. They can help if you have been working under a sham contract preventing you from being paid.
Fair Work Commission is the national workplace relations tribunal and can give information about unfair dismissals, general protections, workplace bullying and harassment and how to lodge an application.
Apprenticeships Info gives free advice, referrals and support to all Queenslanders about apprenticeships, traineeships and training options.
Office of Industrial Relations - Queensland gives information about workplace relations including long service leave, child employment, private employment agents, trading hours, workers' accommodation, public holidays, and wages and conditions for public sector and local government employees.
Queensland Industrial Relations Commission(QIRC) is an independent tribunal established to conciliate and arbitrate industrial matters in Queensland. The QIRC provides information about whether you are covered by state or federal legislation.
WorkSafe Qld is the state government department that deals with complaints about workplace harassment, safety and fatigue. They also give information on making a complaint internally through your workplace, or externally through their complaints process.
Department of Industry - Single Business Service gives information and referral services to independent contractors.
Australian Council of Trade Unions gives help to union members about employment matters .
Queensland Human Rights Commission gives information and helps to resolve complaints about discrimination in public life, including in the workplace.
Australian Human Rights Commission gives information on human rights and helps to resolve complaints about discrimination or breaches of human rights under federal laws.
Queensland Working Women's Service is a free, confidential advisory service to help Queensland women with work related matters. They can also help with advocacy and referrals about industrial relations matters including employment rights, unfair dismissal, discrimination and harassment.
Financial counselling can help if you are experiencing financial difficulty because of illness or job loss. They may be able to help arrange for payments to be reduced or postponed.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 22 November 2022