See Fair Work Act ss.338–339
The general protections provisions protect persons who are:
in respect of the following action:
that affects, is capable of affecting or is taken with intent to affect an employee of the employer, or
that affects, is capable of affecting or is taken with intent to affect the employee’s employer.
The general protections provisions also have effect as if any reference to an employer or employee was a reference to a national system employer or employee.
The term person is used throughout the general protections provisions.
A person can be defined as a separate legal entity, recognised by the law as having rights and obligations.
There are 2 categories of person:
The terms employer and employee have their ordinary meaning for the purpose of general protections provisions. Other sections of the Fair Work Act 2009 give specific definitions to these terms (‘national system employer’ and ‘national system employee’) which are not applicable to the general protections provisions.
An employer is a person who engages another to work under a contract of employment. An employee is a person who works under a contract of employment for an employer, rather than under some other kind of contract for work.
Officers and enlisted members of the Australian Defence Force (Army, Navy and RAAF) are not employees because no civil contract of any kind is created with the Crown or the Commonwealth as a result of the appointment of an officer or the enlistment of an enlisted member.
Prospective means ‘of or in the future’ or ‘potential; likely; expected’. Prospective employees are not confined to persons who an employer has formed an intention to employ, and includes persons whose employment is being considered.
However the expression prospective employee ‘… implies a substantial degree of proximity such as to exclude persons who might yet apply for employment or be invited to consider employment with a particular employer but at the relevant time were not yet negotiating in relation to such a possibility’.
A person would not usually be regarded as a prospective employee unless they have actually made an application for employment or are negotiating in relation to possible employment.
A prospective employee is protected from a prospective employer:
A prospective employee is taken to have the workplace rights he or she would have if he or she were actually employed in the prospective employment by the prospective employer.
If a person was refused employment because they were a member of a union, or was offered a lower rate of pay because of their gender, then that person may seek a remedy under the general protections provisions of the Fair Work Act.
An independent contractor is covered by the general protections provisions of the Fair Work Act.
An independent contractor undertakes to produce a given result, but is not, in the actual execution of the work, under the order or control of the person for whom it is done. The fundamental characteristic of an independent contractor (as compared to an employee) is that the independent contractor provides a service to the principal while working in their own business.
In the general protections provisions of the Fair Work Act, the term ‘independent contractor’ is not confined to persons providing services in the form of labour which would otherwise be performed by an employee, and extends to any person (including large corporations) carrying on the business of a contractor that provides services, irrespective of scale, including where any number of persons are employed to carry on the business’s functions.
The general protections provisions apply to a person (the principal) proposing to enter into a contract for services with an independent contractor who takes action against the independent contractor or a person employed or engaged by the independent contractor. The provisions thereby protect prospective independent contractors and their employees and other persons engaged by them. They cover not just independent contractors who are proposed to be engaged, but also potential independent contractors whose engagement is under consideration or in prospect.
A labour hire worker, whether an employee or independent contractor, is covered by the general protections provisions of the Fair Work Act.
A labour hire worker is someone who enters into a work contract with a labour hire agency. The labour hire agency has a commercial contract to supply labour to a host firm. The worker performs work for the host firm. The host firm pays the labour hire agency, and the labour hire agency then pays the worker. An example of this is a temporary position working in an office during a particularly busy time for the host firm.
Persons properly characterised as volunteers will not be covered by the general protections provisions of the Fair Work Act.
A volunteer is ‘someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain’.
The Fair Work Commission considers volunteerism as an arrangement generally motivated by altruism, rather than for remuneration or private gain. Therefore, the commitments shared between the parties are usually considered moral in nature, rather than legal. Payment unrelated to hours of work or the actual performance of work does not of itself imply that a worker is an employee. In these circumstances, the payment can more aptly be described as an ‘honorarium’ or gift.
 Fair Work Act s.338(1).
 Fair Work Act s.339.
 Butterworths Australian Legal Dictionary, 1997, 870.
 Explanatory Memorandum to Fair Work Bill 2008 .
 The Macquarie Dictionary Online.
 Fair Work Act s.341(3).
 Fair Work Act s.342(1) item 4.
 The Macquarie Dictionary Online.
 Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club  FWA 1143 (unreported, Steel C, 21 February 2011) .
 See Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club  FWA 1143 (unreported, Steel C, 21 February 2011) .