If you run a business that employs people, the FW Act (the Fair Work Act 2009 (Cth)) contains a set of rules you cannot afford to treat as abstract. They are the general protections in Part 3-1, and they make it unlawful to take "adverse action" against a worker because of a workplace right, union membership or industrial activity, or a protected attribute such as age, sex or disability.
What makes these rules different from most other employment obligations is the reverse onus of proof. If a worker alleges the action was taken for a prohibited reason, the law presumes that is what happened, and you must prove otherwise. That single feature is why otherwise reasonable employers lose claims they expected to win, and why the obligation is as much about record-keeping as it is about behaviour.
This article sets out who the obligation applies to, what counts as adverse action, the prohibited reasons that trigger the duty, the reverse onus, how the rules interact with unfair dismissal, the consequences of getting it wrong, and a practical checklist for everyday decisions.
Who the Obligation Applies To
The adverse action rules apply to employers against their employees, but they are wider than that. Under s 342 of the Fair Work Act 2009 (Cth), adverse action can also be taken:
- By a prospective employer against a prospective employee: refusing to hire someone, or offering employment on discriminatory terms or conditions.
- By a principal against an independent contractor: terminating the contract, injuring the contractor in relation to the terms of the contract, or altering their position to their prejudice.
- By an employer against an employee: dismissing the employee, injuring them in their employment, altering their position to their prejudice, or discriminating between employees.
The phrases "injure in employment" and "alter the position to the employee's prejudice" cover a wide range of conduct: cutting hours, demoting, removing duties, changing rosters to a worse outcome, issuing a warning, standing someone down, or any other change that disadvantages the worker. The action does not need to be a dismissal to be caught, and a single act can amount to adverse action even when the paperwork around it looks clean. What matters is the reason behind the act.
The Core Duty: No Action for a Prohibited Reason
The obligation is a negative one. You must not take adverse action against a person because of any of the following reasons, each of which has its own protection in the Act.
Workplace Rights
Under s 340 of the Fair Work Act 2009 (Cth), you must not take adverse action because a person has a workplace right, has exercised or not exercised it, proposes to exercise it, or to prevent them exercising it. A workplace right, defined in s 341, includes the benefit of a workplace law or instrument, the ability to take part in a process under one, and the ability to make a complaint or inquiry about their employment.
This is the trigger that catches employers most often. Requesting personal or carer's leave, asking how pay was calculated, querying a commission statement, raising a safety concern, or making a complaint about underpayment are all exercises of workplace rights. If an employee asks for leave and their shifts are cut the next week, and the reason for the cut was the request, that is adverse action. It does not matter that the employer also had an operational reason, because the Act treats action as taken for a particular reason if that reason is part of the mix (see s 360).
Union Membership and Industrial Activity
Under s 346 of the Fair Work Act 2009 (Cth), you must not take adverse action because a person is, or is not, a member or officer of a union, or because they engage in industrial activity. Industrial activity, defined in s 347, includes organising or promoting lawful union activities and representing or advancing the views, claims or interests of a union.
A union delegate who represents a member in a workplace dispute is engaging in industrial activity. Disciplining, demoting or dismissing that person because of their union role, rather than because of genuine conduct, is adverse action.
Protected Attributes
Under s 351 of the Fair Work Act 2009 (Cth), you must not take adverse action because of a person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
The section contains limited exceptions. Action that is not unlawful under the relevant anti-discrimination law, action genuinely required by the inherent requirements of the position, and certain good-faith action by religious institutions are not caught. In practice, the safest assumption is that any decision influenced by one of these attributes, even alongside a legitimate reason, is a serious risk.
Temporary Absence Because of Illness or Injury
Under s 352 of the Fair Work Act 2009 (Cth), an employer must not dismiss an employee because they are temporarily absent from work due to illness or injury of a kind prescribed by the regulations. This protection is about dismissal specifically, and it operates separately from the leave rules.
The Second Duty: Prove the Real Reason
The defining feature of the general protections is the reverse onus in s 361 of the Fair Work Act 2009 (Cth). If an application alleges that action was taken for a prohibited reason, the action is presumed to have been taken for that reason unless you prove otherwise. Combined with s 360, which provides that a reason counts if it is included among the reasons for the action, this means a prohibited reason does not need to be the only reason or even the dominant reason for a claim to succeed.
The High Court explained how the test works in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The court asks, on the balance of probabilities, why the action was actually taken, and the decision-maker's genuine state of mind is central. If the employer gives credible evidence of an innocent reason and the court accepts it, the claim fails. In Barclay, the employer's evidence of the real reasons for suspending a union delegate was accepted, and the appeal succeeded.
That is why contemporaneous records matter so much. Dated performance notes, meeting minutes, consultation records, emails setting out business reasons, and warning letters that pre-date any dispute are the evidence you will rely on to rebut the presumption. Documentation created after a claim is lodged, or reconstructed for the occasion, carries little weight.
How Adverse Action Differs From Unfair Dismissal
The two regimes are separate and both can apply to the same dismissal. Under s 385 of the Fair Work Act 2009 (Cth), a dismissal is unfair if it was harsh, unjust or unreasonable, not consistent with the Small Business Fair Dismissal Code, and not a case of genuine redundancy. The Fair Work Commission weighs the factors in s 387, including whether there was a valid reason, whether the employee was notified and given a chance to respond, and whether they had access to a support person.
Adverse action is different in focus. It is not about whether the process was fair, but about the reason for the action. A dismissal can be procedurally flawless and still be adverse action if the real reason was a workplace right, union activity or a protected attribute. Adverse action also reaches further: it covers non-dismissal conduct, prospective employees and some independent contractors, none of which are within unfair dismissal.
The genuine redundancy rules in s 389 are relevant to both regimes. A redundancy is genuine if the job is no longer required due to changes in operational requirements, consultation obligations in any applicable award or enterprise agreement are met, and it would not have been reasonable to redeploy the person. But a genuinely redundant role does not protect you if the selection of who lost their job was influenced by a prohibited reason.
Consequences of Getting It Wrong
General protections are civil remedy provisions, so a contravention can attract a range of orders from the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible state or territory court. The consequences of a contravention can include:
- Pecuniary penalties: the maximum penalty is 60 penalty units per contravention for an individual and 300 for a body corporate (s 546). At the current unit value of $330, that is around $19,800 and $99,000 per contravention. A serious contravention, where the breach was knowing or reckless (s 557A), carries ten times those amounts.
- Compensation and other orders: courts can order compensation for loss, reinstatement, injunctions and other remedies (s 545). Unlike unfair dismissal compensation, general protections compensation is not capped by a statutory formula such as the 26-week limit.
- Personal liability: a person involved in a contravention, including a manager or HR adviser who aided, abetted, counselled or was knowingly concerned in it, is taken to have contravened the provision themselves (s 550). Individuals can be ordered to pay penalties personally.
There is also a defined pathway that makes these claims fast-moving. A dismissal-based claim must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect (s 366). The Commission deals with the dispute by conference, and if it is not resolved it issues a certificate, after which the applicant has 14 days to apply to court (s 370). Non-dismissal disputes also pass through the Commission before a court application. If both parties agree, the Commission can arbitrate the dispute instead. The practical effect is that you have weeks, not months, to assemble your evidence.
A Compliance Checklist for Everyday Decisions
Use this sequence before any decision that could disadvantage an employee, whether it is discipline, a change to hours or rosters, a stand down, or a restructure:
- Identify the lawful reason first: write down the genuine business reason, whether performance, conduct or operational change, and check that it does not reference leave, complaints, union activity or a protected attribute.
- Scan for red flags: has the employee recently exercised a workplace right, made a complaint, or been involved with a union? If so, consider whether a different decision-maker should handle the action so the reasons stay clean.
- Apply consistent criteria: use the same objective standards across the whole cohort and record how they were applied.
- Separate processes: keep complaint handling and any related performance or disciplinary steps in different streams, with different decision-makers where possible.
- Run a fair process: give the employee the particulars of the concern, the relevant evidence, a reasonable chance to respond with a support person, and genuine consideration of their response.
- Document as you go: date every note, email, meeting summary and warning, and keep them consistent with each other.
- For restructures, follow the redundancy rules: consult as required by any applicable award or agreement, apply objective selection criteria, and consider redeployment (s 389).
When to Get Professional Help
A lawyer adds the most value before you act, not after a claim lands. Before a dismissal, restructure or any decision taken close to a complaint or leave request, a practitioner can review the reasons you have recorded, test whether they will survive the reverse onus, and structure the process so your documentation supports your position.
If a claim is made, a lawyer can manage the Fair Work Commission application and the 21-day and 14-day deadlines, prepare the evidence that rebuts the presumption, represent you at conciliation or arbitration, and defend or settle the matter if it reaches court. Because the reverse onus means the employer carries the burden of proof, having someone who knows what a court expects from decision records is often the difference between a defensible position and a costly one.
Start the Paper Trail Before You Need It
The duty most often missed by Australian employers is not the prohibition itself but the burden that sits behind it. Everyone knows not to sack someone for being pregnant or joining a union. What catches businesses by surprise is the reverse onus: once a claim is made, it is your job to prove the reason was lawful, and your only reliable evidence is the record you kept at the time.
The first action to take this week costs nothing. Start a dated decision log for performance, conduct and operational changes, noting the legitimate reason for each decision before it is communicated. When a claim arrives, that log, not your memory of events, is what rebuts the presumption.