Claims under the Fair Work Act 2009
Claims under the Fair Work Act 2009 can arise where workplace rights, protections or minimum employment entitlements are affected, including in matters involving general protections, adverse action and other statutory employment obligations.
What is a claim under the Fair Work Act?
The Fair Work Act 2009 establishes minimum employment entitlements, workplace rights and protections, together with statutory obligations that apply to employers, employees and other workplace participants in circumstances covered by the Act.
A claim may arise where a workplace right or protection is contravened, a minimum employment entitlement is not provided, or another statutory obligation is not complied with. Depending on the circumstances, Fair Work Act matters may involve general protections and adverse action, underpayments, workplace discrimination, industrial activities, coercion, sham arrangements or other contraventions of workplace laws.
Rights and obligations under the Fair Work Act operate alongside those that may arise under modern awards, enterprise agreements and employment contracts. The legal basis of a statutory Fair Work Act claim is therefore different from a claim for breach of an employment contract, although some workplace disputes may involve both contractual and statutory issues.
How can Grope Hamilton Lawyers help?
Claims under the Fair Work Act 2009 can involve different workplace rights, statutory obligations, legal processes and time limits. Our team can help you understand your legal position, identify the appropriate pathway and take practical steps to protect your interests.
Assess Your Circumstances
If you believe your workplace rights or entitlements have been affected, our employment lawyers can assess your circumstances and advise whether you may have grounds for a claim under the Fair Work Act 2009.
Matters We Can Assist With
- general protections and adverse action;
- the exercise of workplace rights, including workplace complaints or inquiries;
- unlawful workplace discrimination and other protected grounds;
- underpayments and minimum employment entitlements;
- coercion, undue influence, misrepresentation and other prohibited workplace conduct; and
- other alleged contraventions of the Fair Work Act.
Legal Pathway & Representation
Where a potential claim is identified, we can advise you on the appropriate legal pathway, applicable time limits and relevant evidence. We can also assist with preparing applications, negotiations and dispute resolution processes, and provide representation in Fair Work Commission or court proceedings where appropriate.
Related Issues & Practical Outcome
Where the circumstances also involve dismissal or contractual issues, we can advise on how the different legal rights and potential claims interact and which course of action may be appropriate.
Our focus is on protecting your interests and working towards a practical, cost-efficient and successful outcome.
Early Advice & Response
A claim or allegation under the Fair Work Act 2009 can create legal, operational and commercial implications for an employer. Obtaining advice at an early stage can assist in understanding the nature of the allegation, the employer's obligations and the appropriate response.
Matters We Can Assist With
- responding to general protections and adverse action claims;
- assessing allegations involving workplace rights, discrimination or other prohibited conduct;
- responding to claims concerning minimum employment entitlements and alleged underpayments;
- assessing the legal risks arising from proposed or existing workplace decisions;
- preparing responses to Fair Work Commission applications;
- participating in negotiations, conferences and other dispute resolution processes; and
- defending proceedings where litigation becomes necessary.
Interaction of Legal Obligations
We can also advise employers on the interaction between the Fair Work Act, applicable awards or enterprise agreements and contractual employment arrangements where these issues arise within a dispute.
Commercially Relevant Advice
Our approach is to provide prompt, practical and commercially relevant advice while working towards a cost-efficient and successful resolution of the matter.
Workplace Rights under the Fair Work Act
Workplace rights are protected under the general protections provisions of the Fair Work Act 2009. A workplace right may arise from an entitlement, a statutory role or responsibility, participation in a workplace process, or the ability to make certain complaints or inquiries.
Entitlements, Roles or Responsibilities
An entitlement to a benefit, or a role or responsibility, under a workplace law, workplace instrument or an order made by an industrial body.
Processes or Proceedings
The ability to commence or participate in a process or proceeding under a workplace law or workplace instrument.
Complaints or Inquiries
The ability to make a complaint or inquiry to a person or body with the capacity to seek compliance with a workplace law or workplace instrument.
Employment-Related Complaints or Inquiries
If they are an employee, the ability to make a complaint or inquiry in relation to their employment.
Workplace Rights in Practice
Workplace rights can arise in different employment situations, depending on the particular circumstances.
A Workplace Right Exists
The circumstances involve a workplace right recognised or protected under the Act.
The Right Is Relevant
The person has, exercises, does not exercise, or proposes to exercise or not exercise that right.
The Reason for the Action
The alleged action is considered in light of whether it was taken because of that workplace right or another prohibited reason.
Whether a particular entitlement, complaint, inquiry or other activity amounts to a protected workplace right will depend on its legal source and the circumstances of the matter.
Protected Grounds and Workplace Discrimination
The Fair Work Act protects employees and prospective employees from adverse action taken because of certain protected attributes.
These include race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, social origin, breastfeeding, gender identity, intersex status, and experiencing family and domestic violence.
Whether particular conduct amounts to unlawful discrimination under the Fair Work Act will depend on the circumstances, the reason for the action and any statutory exceptions that may apply.
Industrial Activities and Freedom of Association
The Fair Work Act also protects freedom of association and certain industrial activities.
Depending on the circumstances, these protections may relate to membership or non-membership of an industrial association, participation or non-participation in protected industrial activities, representing the interests of an industrial association, or seeking representation.
A person may be protected from adverse action taken because they engage, or choose not to engage, in industrial activity protected by the Act.
Temporary Absence Because of Illness or Injury
The Act provides protection from dismissal in certain circumstances where an employee is temporarily absent from work because of illness or injury.
Whether this protection applies will depend on the circumstances of the absence and the applicable statutory and regulatory requirements, including matters such as its duration and the evidence provided.
Coercion, Misrepresentation and Undue Influence or Pressure
The Fair Work Act prohibits certain forms of coercion, misrepresentation and undue influence or pressure in connection with workplace rights, industrial activities and specified employment arrangements.
These protections can apply, for example, where a person is pressured in relation to the exercise of a workplace right, where false or misleading representations are made about workplace rights, or where inappropriate pressure is applied in relation to particular employment arrangements or entitlements.
The particular legal requirements differ between these protections, and whether conduct falls within them will depend on the circumstances.
Sham Employment Arrangements
The Fair Work Act contains protections against certain sham arrangements that misrepresent or improperly change the legal nature of an employment relationship.
This may include representing an employee as an independent contractor where the statutory requirements for sham contracting are met, dismissing or threatening to dismiss an employee in order to engage them to perform the same or substantially the same work as an independent contractor, and certain false representations intended to persuade an employee to become a contractor.
The Act also contains protections relating to sham casual employment arrangements, including certain circumstances where an employee is dismissed or threatened with dismissal in order to be re-engaged as a casual employee to perform the same or substantially the same work.
Workplace Sexual Harassment
Sexual harassment connected with work is also prohibited under the Fair Work Act. These protections operate under a separate part of the Act and have their own legal requirements and dispute processes.
Depending on the circumstances, workplace sexual harassment may also give rise to rights or obligations under other federal or state legislation.
Other Protections and Prohibited Conduct under the Fair Work Act
The general protections provisions of the Fair Work Act 2009 extend beyond the exercise of workplace rights. The Act also provides protections in relation to discrimination, industrial activities and certain other workplace conduct, and prohibits particular arrangements that may improperly alter the nature of an employment relationship.
Minimum Employment Entitlements
Depending on the employment arrangements that apply, minimum entitlements may include:
Underpayments and Payment Obligations
An underpayment may arise where an employee receives less than the amount required under the applicable workplace law or industrial instrument. Determining whether an underpayment has occurred requires identifying the correct source of the entitlement, the employee's classification and working arrangements, and the amounts that were actually paid.
The Fair Work Act also contains requirements concerning the payment of wages and certain other amounts. Depending on the circumstances, failures to comply with these obligations may give rise to recovery proceedings, civil penalties or other enforcement action.
Deductions and Other Payment Arrangements
The Fair Work Act regulates when deductions can be made from an employee's pay and places restrictions on certain requirements for employees to spend or pay amounts in connection with their employment.
Whether a deduction or payment arrangement is permitted will depend on its legal basis, the circumstances in which it was made and the requirements of the Act or any applicable award or enterprise agreement.
Intentional Underpayments
Since 1 January 2025, intentionally underpaying wages or employment entitlements can constitute a criminal offence where the statutory requirements are satisfied. The offence does not extend to honest mistakes.
The consequences of an underpayment therefore depend on the nature of the obligation, the circumstances of the non-compliance and, where relevant, whether the conduct was intentional.
Minimum Employment Entitlements and Underpayments
The Fair Work Act 2009 establishes and enforces minimum employment entitlements that apply independently of the general protections provisions. These entitlements may arise from the National Employment Standards, a modern award, an enterprise agreement or a national minimum wage order.
How Fair Work Act Claims Are Dealt With
The process for dealing with a matter under the Fair Work Act 2009 depends on the legal basis of the claim and the circumstances in which it arises. Different procedures apply to general protections matters, claims concerning minimum employment entitlements and other alleged contraventions of the Act.
General Protections Involving Dismissal
A general protections application involving dismissal must generally be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. Extensions are only available in limited circumstances.
The Commission's role in these matters is primarily to assist the parties to resolve the dispute. It does not ordinarily investigate the allegations or determine whether a contravention has occurred. If the dispute is not resolved, the matter may proceed to a federal court, subject to the requirements of the Act.
General Protections Not Involving Dismissal
General protections can also apply where adverse action occurs without the employment relationship ending.
An application may be made to the Fair Work Commission in relation to qualifying non-dismissal conduct occurring within the preceding six years. Unlike a general protections dismissal matter, participation in Commission dispute resolution is not necessarily required before court proceedings are commenced.
Different Bodies Have Different Roles
Fair Work Commission
The Fair Work Commission is Australia's national workplace relations tribunal and deals with particular applications and workplace disputes, including general protections matters.
Fair Work Ombudsman
The Fair Work Ombudsman is the national workplace relations regulator. Its functions include promoting and monitoring compliance, investigating certain contraventions, recovering underpayments and taking enforcement action where appropriate.
Federal Courts
The Federal Court of Australia and the Fair Work Division of the Federal Circuit and Family Court of Australia may determine Fair Work Act civil claims and make enforceable orders where they have jurisdiction.
Outcomes Will Depend on the Claim
The outcome available in a Fair Work Act matter depends on the provision relied upon and the process through which the dispute is resolved. Depending on the circumstances, outcomes may include payment of outstanding wages or entitlements, compensation, reinstatement, injunctive relief, civil penalties or other orders.
Identifying the relevant statutory provision, applicable time limit and appropriate forum is therefore important at an early stage.
Frequently Asked Questions
Not necessarily. Most private-sector employment relationships in South Australia are covered by the national Fair Work system. However, South Australian state public sector and local government employees generally remain within the South Australian workplace relations system.
Determining which system applies is an important first step, as it may affect the rights, procedures and remedies available.
A general protections application does not require an employee to have completed the minimum employment period that applies to an unfair dismissal claim.
However, other eligibility requirements still apply, including the requirement that the particular circumstances fall within the general protections provisions and, for a general protections dismissal application, that the applicant was an employee covered by the national workplace relations system.
If the issue concerns whether a dismissal was harsh, unjust or unreasonable, you can learn more about our Unfair Dismissal Claims services.
In some circumstances, yes. Certain general protections extend beyond existing employees and can apply to prospective employees, independent contractors and other workplace participants.
The protection available depends on the person's legal relationship with the other party and the conduct involved. A general protections application involving dismissal, for example, requires the applicant to have been an employee, whereas some non-dismissal protections can apply more broadly.
Potentially. Under the Fair Work Act, a person who is involved in a contravention of a civil remedy provision can, in certain circumstances, be treated as having contravened that provision themselves.
This can be relevant to directors, managers, advisers or other individuals who knowingly participate in particular contraventions. Personal liability is not automatic and will depend on the person's involvement and the statutory requirements being satisfied.
A prohibited reason does not necessarily need to be the only reason for workplace action to raise a general protections issue.
Under the Fair Work Act, action can be regarded as having been taken for a particular reason where that reason is one of the reasons for the action. The actual reasons for a workplace decision can therefore be particularly important where several factors contributed to it.
General protections proceedings contain particular rules concerning proof of the reason for an action.
Where it is alleged in relevant proceedings that action was taken for a prohibited reason or with a prohibited intent, the Fair Work Act provides for a statutory presumption concerning that reason or intent unless the person who took the action proves otherwise.
This does not mean that every allegation of adverse action will automatically succeed. The application of the statutory presumption and the evidence required will depend on the circumstances of the particular matter.
No. The general protections provisions do not prevent employers from taking legitimate workplace action for lawful reasons, including appropriately addressing performance or conduct concerns.
However, the reason for the action remains important. If a prohibited reason was one of the reasons for taking adverse action, a general protections issue may arise even where other legitimate reasons also existed.
Employers should therefore consider the legal basis for significant workplace decisions and ensure that the reasons for those decisions are properly identified and documented.
The evidence required will depend on the nature of the claim. Relevant material may include emails and messages, written complaints or inquiries, payslips and employment records, rosters or timesheets, performance and disciplinary documents, meeting notes, workplace policies and records of the circumstances surrounding a particular decision.
In general protections matters, contemporaneous evidence concerning when a decision was made, who was involved and the reasons for the decision can be particularly important.
Employees and employers should consider preserving relevant records once a workplace dispute arises.
Potentially. The same events can raise different statutory, contractual or dismissal-related issues, but each type of claim has its own legal test, procedure and available remedies.
The Fair Work Act also restricts multiple applications or complaints concerning the same dismissal in certain circumstances. It can therefore be important to identify the appropriate claim before proceedings are commenced.
If your concern relates specifically to whether a dismissal was unfair, see our Unfair Dismissal Claims page. If the issue concerns rights or obligations arising from an employment agreement, see our Breaches of Employment Contracts page.