General protections, adverse action and the reverse onus under sections 340 and 361

The general protections regime

Part 3-1 of the Fair Work Act 2009 establishes the general protections regime. This regime provides freedom from adverse action for workplace rights, industrial activities and discriminatory grounds. It aims to protect individuals from being disadvantaged for engaging in activities related to their employment. penalty estimator

Section 340 of the Act prohibits employers from taking adverse action against a person because they have, exercise or propose to exercise a workplace right. Adverse action is defined broadly under section 342 and includes actions such as dismissal, injury in employment, altering an employee’s position to their prejudice, or discrimination between employees.

Importantly, unlike claims for unfair dismissal, there is no high-income threshold and no minimum period of employment required to bring a general protections claim. penalty estimator

What is a workplace right?

A workplace right, as defined in section 341, encompasses several entitlements and abilities relating to employment. It includes being entitled to the benefit of, or having a role under, a workplace law or instrument. It also covers the ability to initiate or participate in a process or proceedings under a workplace law, or the ability to make a complaint or inquiry in relation to the employee’s employment.

Examples of workplace rights are varied and can include actions such as making a request for flexible working arrangements, complaining about underpayment, raising a workplace health and safety (WHS) issue, or being involved in a workers compensation claim. These rights extend to making complaints to external bodies, such as the Fair Work Ombudsman, regarding employment matters.

For a right to be considered a workplace right under the legislation, it must be genuinely held by the employee. This guidance comes from the Federal Court.

Reverse onus under section 361

Section 361 alters the standard evidentiary burden in general protections proceedings. Ordinarily, the person alleging something must prove it. However, once an applicant demonstrates objective facts – specifically, that adverse action was taken and a workplace right exists – the employer bears the responsibility of proving that the adverse action was not taken for a prohibited reason.

To satisfy this obligation, the employer will typically need to present direct evidence of the decision maker’s actual reasons for the adverse action. This often involves calling the decision maker to give evidence.

Leading cases emphasise that the decision maker’s subjective reasons are crucial and will be decisive in determining whether the employer has met the evidentiary burden.

Remedies and process

The process for addressing general protections and adverse action claims differs depending on the nature of the claim. Applications relating to dismissals must be lodged with the Fair Work Commission within 21 days. Non-dismissal claims may be filed directly in the Federal Court or Federal Circuit and Family Court.

Available remedies for successful claims include reinstatement, compensation for losses such as hurt and humiliation, and the possibility of injunctions. The Fair Work Commission and Federal Courts have the power to grant these remedies.

Civil penalties may be imposed under section 546 for contraventions of the Fair Work Act. These penalties are significantly higher for corporations than for individuals.