Why the general protections mostly don't apply
The Fair Work Act's general protections — the protection of workplace rights, industrial activity, protected attributes and sick leave, with its reverse onus — only apply to action taken by a constitutionally-covered entity, such as a trading or financial corporation or the Commonwealth. A sole trader, a partnership of individuals and a WA government department are none of those. So for most WA state-system employees there is no general protections claim at all.
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What the state system has instead is a set of narrower, separate protections: damaging action (below), rules against sham contracting and advertising below the minimum wage, criminal offences for union-related discrimination, and a right to request flexible work. The biggest gap is that nothing in the IR Act protects you in a general way for taking leave, being sick, or a protected attribute. For those, you rely on federal unlawful termination and on discrimination law.
Damaging action: what's protected
Under s 97A(1) of the IR Act, an employer must not take damaging action against an employee because the employee is able to make an employment-related inquiry or complaint to the employer or to someone else, or for reasons that include that. "Employee" includes a job applicant, and "employer" includes a former or prospective employer.
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| If you work there, damaging action means | If you're applying, it means |
|---|---|
| Dismissing you | Refusing to employ you |
| Altering your position to your disadvantage | Offering you worse terms because of it |
| Refusing to promote or transfer you | — |
| Otherwise injuring you in your employment | — |
| Threatening any of these | Threatening either of these |
What counts as an inquiry or complaint
The complaint or inquiry must be one you were entitled to make — backed by something in your contract, an award or legislation. A complaint is an expression of discontent seeking consideration or redress: more than a mere request for help, but it doesn't have to be labelled a complaint. In one of the first decisions, grievances, a request to work from home that raised workload concerns, and questions about pay or tax were each treated as capable of qualifying.
It is not a general inquiry into whether you were treated unfairly. The whole claim turns on the link between a particular complaint and a particular action, so you need to be able to say precisely what you raised, when, with whom, and what happened next.
The reverse onus, the court and what you can get
You prove the facts; the employer proves its reason. You have to show that you made (or proposed to make) an employment-related inquiry or complaint, and that the employer took damaging action. Once you've done that, it's for the employer to prove it did not act because of the complaint (s 97A(2)). Courts have been guided by the federal general protections cases in applying this, and an employer usually tries to discharge the onus through evidence from the person who made the decision.
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| How it works | |
|---|---|
| Where | The Industrial Magistrates Court, not the WAIRC. There's no conciliation step before it |
| Time | Within 6 years of the damaging action (s 82A) |
| Remedies | Reinstatement if you were dismissed, employment if you were refused a job, and compensation for loss or injury with no cap (s 97B) |
| Injury | Can include humiliation and hurt feelings, but only harm beyond what normally comes with the action, and it must be proved with evidence |
| Penalty | Up to $93,000 for a company ($930,000 if serious) and $18,000 for an individual ($180,000 if serious), from 31 January 2025 |
| Managers | A person involved in the contravention, such as the manager who made the decision, can be liable too |
| Costs | Legal costs are generally not ordered, unless the court finds a serious contravention or the case was frivolous or vexatious |
One set of remedies per action. The court can't make orders if you've already sought relief for the same damaging action under another law — for example a WA unfair dismissal claim about the same dismissal — unless that claim was withdrawn or failed for lack of jurisdiction, and you can't be compensated twice (s 97B(5)–(6)). If you've been dismissed, consider getting professional advice on which to bring before filing. The two compare like this:
| WA unfair dismissal | Damaging action | |
|---|---|---|
| Forum | WAIRC | Industrial Magistrates Court |
| Time | 28 days | 6 years |
| What you must show | The dismissal was harsh, oppressive or unfair | A complaint and damaging action; then the employer must disprove the link |
| Compensation | Capped at 6 months' remuneration | No cap |
Damaging action law is still young. As at September 2026 there was no Full Bench or Industrial Appeal Court decision on it, and the leading first-instance decision was under appeal.
Unlawful termination: the federal claim that still reaches you
The Fair Work Act's unlawful termination provisions use the ordinary meaning of employee, so they apply to WA state-system employees. Under s 772 an employer must not dismiss you for reasons that include:
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- temporary absence because of illness or injury of a kind prescribed by the regulations — narrower than it sounds;
- union membership or activity, or not being a union member, or acting as an employee representative;
- filing a complaint or taking part in proceedings against your employer about an alleged breach of the law, or going to a regulator;
- race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;
- absence on parental leave, or reasonable absence for voluntary emergency management work.
It covers dismissal only, not action short of it. You apply to the Fair Work Commission within 21 days of the dismissal; a late application needs exceptional circumstances. If you allege a prohibited reason, it's presumed to be the reason unless the employer proves otherwise (s 783). If conciliation fails, the case can go to the federal courts, where compensation is not capped.
Declared councils: a trap to avoid
If your employer is a WA council, a general protections claim may or may not be open, as explained above. If it is open, it carries the same 21-day limit, and a general protections claim then displaces unlawful termination for the same conduct (Fair Work Act s 723). If it isn't, unlawful termination is the federal route.
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The risk is on the WA side. A council employee who lodges a general protections application with the Fair Work Commission and then lets it lapse — so it's dismissed for failing to respond rather than for lack of jurisdiction — can find the WAIRC unfair dismissal claim barred altogether. What is settled is that declared councils are WA state-system employers, whether or not they trade. A Fair Work application that is withdrawn in writing lifts the bar; one that is left to lapse doesn't.
Other protections in the WA state system
- Sham contracting. An employer must not misrepresent your employment as a contract for services, dismiss you to re-engage you as a contractor for the same work, or make false statements to push you into contracting (ss 97D–97F). Industrial Magistrates Court, 6 years, reinstatement or compensation, and usually an underpayment claim alongside. See WA underpayment.
- Job ads below the minimum wage are prohibited (s 97H), enforced by penalty.
- Union membership. Treating someone differently for being, or not being, a union member is a criminal offence (IR Act Part VIA). For a dismissal, federal unlawful termination (21 days) is usually the faster route.
- Flexible work. Since 31 January 2025, an employee with 12 months' service (or a regular casual) who is pregnant, is the parent of or responsible for a child of school age or younger, is a carer, has a disability, is 55 or older, is experiencing family and domestic violence, or is caring for a family or household member who is, can request flexible hours, pattern or location. The employer must reply in writing within 21 days and can refuse only on reasonable business grounds. A dispute can go to the WAIRC after workplace discussions.
- Discrimination. A complaint under the Equal Opportunity Act 1984 (WA) within 12 months (damages capped at $40,000), or to the Australian Human Rights Commission under the federal Acts (may be terminated if more than 24 months old). See discrimination.
- Health and safety. Being dismissed or disadvantaged for raising a safety issue can found a claim in the Work Health and Safety Tribunal within 1 year, with a reverse onus. Bringing another claim about the same matter first (such as unfair dismissal) can shut this one off, so the order of filing matters.
If the treatment was bullying or sexual harassment, see bullying and sexual harassment (WA).