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Traditionally in common law legal disputes, the party who makes assertion claim has the burden of proving it. However, parties accused of breaching the General Protections provisions of the Fair Work Act 2009 (Cth), (“the Act”) may find the tables turned and be obliged to disprove the allegations made against them. This situation favours employees in employment disputes regarding the General Protections provisions, although employees will still need evidence to support their claims.

General Protections Provisions

The General Protection provisions of the Act protect the actual, proposed or potential exercise of workplace rights. In this context, workplace rights include benefits, roles and responsibilities under workplace laws and instruments such as:

  • employment contracts;
  • awards; and
  • workplace legislation.

Workplace rights also include the legal capacity to:

  • complain about;
  • enquire about; or
  • enforce such rights.

Workplace rights are protected from ‘adverse action’ such as dismissal, discrimination, demotion and similar harm. There are also General Protections provisions prohibiting misrepresentations and coercion in relation to workplace rights, and offering employees inducements to join industrial associations.

If the rights of a party – typically an employee – under the General Protection provisions have been violated, they may make be able to obtain a financial remedy through Fair Work Australia or the Federal Courts, compensating the party for the damages they have suffered. In the context of such legal action, the burden of proof comes into play.

General Protections – Burden of Proof

Section 361 of the Act provides that parties – typically employers – accused of taking actions with intentions that would contravene the General Protection provisions shall be responsible for disproving the allegations. Section 360 further provides that where multiple reasons are given for an action, only one of these reasons needs to be in contravention of the General Protections for their effect to be triggered. Thus if it is alleged that even one of the reasons for an action is in breach of a workplace right, the party subject to the allegation shall bear the onus of disproving it.

While the aforementioned sections provide employees with some statutory assistance in terms of proving that their rights have been adversely impacted upon, the need for evidence in support of an application remains. The case of Manchin v Miners Tipper Services Pty Ltd [2011] FMCA 485 indicates that section 361 cannot be relied upon too heavily by employees, as the facts of the case will still be determined on the evidence presented. In that case, Federal Magistrate Jarrett found the evidence presented by a disinterested third party to be most convincing, thus the onus on the respondent to disprove the allegations was overcome.


The implications of these sections are significant for employees and employers alike. Employees may be able to make a case against employers who act against them in circumstances indicating illegal motives. Employers accordingly need to be certain that they have appropriate legal justification for taking adverse action against employees.

If you or your friends believe that you may have been unfairly terminated, please contact Berrigan Doube Lawyers at our Melbourne Office on (03) 9600 2577 or our Sydney Office on (02) 9251 6699.