General Protections Claims Under the Fair Work Act 2009 (Cth): Common Issues and Recent Authority

08 Feb 2021

INTRODUCTION

1. Recent appellate decisions in which the general protections provisions under Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act) have been judicially considered provide emerging clarity in respect of previously divergent principles. However, as is clear from a consideration of recent decisions, some diffuse judicial views remain.1 This paper gives an overview of this authority and generally describes the elements of claims commonly made under the general protections provisions, principally claims alleging contravention of:

a) section 340 of the FW Act, which protects against adverse action because a person has a workplace right (within the meaning of that term as defined under section 341(1) of the FW Act), has exercised (or has not exercised) a workplace right, or proposes to (or not to) exercise a workplace right; and/or
b) section 351 of the FW Act, which protects against adverse action because of proscribed grounds such as race, sex, age or disability.2

2. A particular focus of recent decisions has been adverse action alleged to have been taken because an employee is able to make a complaint or inquiry in relation to the employee’s employment within the meaning of section 341(1)(c) of the FW Act, which is also a focus of this paper.

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Penny Thew

Solicitor 2000
Barrister 2005

02 9151 2932

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