GENERAL PROTECTIONS

The general protections provisions of the Fair Work Act 2009 Cth (the Act) aim to protect workplace rights and freedom of association and to provide protection from workplace discrimination.

Background

Part 3-1 of the Act deals with general protections afforded to employees covered by the Act.  Broadly, the general protections provisions have four purposes.  These are to:

(1)   protect workplace rights;

(2)   protect freedom of association;

(3)   provide protection from workplace discrimination; and

(4)   provide effective relief for a contravention of the above protections. 

An employee or contractor whose employment has been terminated is entitled to make an application to Fair Work Australia (the body whose functions before 1 July 2009 were performed by the Australian Industrial Relations Commission) for unfair dismissal, which is a claim alleging that the dismissal was harsh, unjust or unreasonable. The general protections provisions present a different avenue of redress where the dismissal was not necessarily unfair.

Put simply, employers cannot take adverse action against employees or prospective employees for certain reasons.  While an application under this part is particularly important in the context of a termination of employment, it is important to note that an application for relief need not follow a termination and may be relevant to an on-going employee or even a prospective employee. This may be relevant in the context of demotion, removal of benefits, reduction in salary and any other detrimental changes to working conditions.

What is a workplace right?

An employer (or a principal in the context of a principal/contractor relationship) must not take adverse action against an employee/contractor because that employee/contractor:

o                    has a workplace right;

o                    has or has not exercised a workplace right;

o                    proposes or proposes not to (or has at any time proposed or proposed not to) exercise a workplace right; or

to stop the employee/contractor from exercising a workplace right.

A person has a workplace right, as defined at section 341 of the Act, if the person:

o          has an entitlement, role or responsibility under a workplace law (which includes the Act or any OH&S legislation), an enterprise agreement or a modern award (and maybe a common law contract of employment);

 

o          has the ability to initiate or participate in a process or proceedings under a workplace law or instrument;

o          is able to make a complaint or inquiry to a person/body with capacity to request compliance with a workplace law or instrument; or

o          is able to make a complaint or inquiry in relation to his or her employment.

What is an adverse action?

An action taken by an employer against an employee:	(a)   dismissal; (b)   injuring the employee in his or her employment; (c)   altering the employee’s position to his or her prejudice; or (d)    discriminating between the employee and other employees
An action taken by a employer against a prospective employee:	(a)   refusing to employ; or (b)   discriminating against the prospective employee in the terms and conditions offered.
An action taken by a principal against an independent contractor	(a)   terminating the contract; (b)   injuring the independent contractor in relation to the contract’s terms and conditions; (c)   altering the contractor’s position to his or her prejudice; (d)   refusing to make use of the contractor’s services; or (e)   refusing to supply goods or services to the contractor

An action taken by a principal against a prospective independent contractor

(a)   refusing to engage the prospective independent contractor; (b)   discriminating against the prospective contractor in the terms and conditions offered; (c)   refusing to make use of the prospective contractor’s services; or (d)    refusing to supply goods or services to the prospective contractor.

In addition, an employer/principal must not take or threaten any action against an employee/contractor with the intent to coerce them, or someone else, to exercise or not exercise a workplace right, or to exercise the right in a particular way.

Finally, an employer/principal must not knowingly or recklessly make a false or misleading representation about a person’s workplace rights, or the exercise, or the effect of the exercise, of a workplace right of another person.

Industrial activities

The Act protects employees in relation to freedom of association, union membership and participation union activities.

Employers/principals are prohibited from taking an adverse action, as discussed above, against an employee, prospective employee, contractor or prospective contractor because they:

o                    are, or are not, an officer or member of an industrial association;

o                    engage or propose to engage in certain industrial activities, including:

·                      becoming or ceasing to be an officer or member of an industrial association;

·                      organising or promoting a lawful activity of an industrial association;

·                      participating in a lawful activity organised or promoted by an industrial association;

·                      representing or advancing the views and interests of an industrial association;

·                      paying a fee to an industrial association; and

·                      seeking representation by an industrial association; or

o                    do not engage or propose to engage in certain other industrial activities, including:

·                      organising or promoting an unlawful activity of an industrial association;

·                      participating in an unlawful activity organised or promoted by an industrial association; and

·                      taking part in industrial action.

Note that the definition of an industrial association is broad and goes further than simply unions to include informal associations of employees.

In addition, an employer/principal must not take or threaten any action against an employee or contractor (or prospective employee or contractor) with the intent to coerce them, or someone else, to engage in industrial activity.

Other protections

Discrimination

Employers are prohibited from taking adverse action against an employee or prospective employee on the basis of their race, colour, national extraction or social origin, sex or sexual preference, age, physical or mental disability, family or carer’s responsibilities, marital status or pregnancy, religion, or political opinion.

In certain circumstances, an employer might have a defence to such a claim, where:

1.         the adverse action is taken because of the inherent requirements of the      particular position;

2.         the action is in accordance with particular religious beliefs in order to avoid injury to the religious susceptibilities of adherents to the religion; or

3.         the action is not unlawful under any federal or state anti-discrimination legislation that is in force in the location where the action occurs.

Temporary illness or injury-related absence

Employers are prohibited from dismissing employees because they are temporarily absent from work because of illness or injury.  An absence from work because of illness of injury will be a temporary absence if it is for a period of three months or less.

Sham contracting arrangements

Employers must not:

o          misrepresent an employment relationship as an independent contracting relationship;

o          dismiss or threaten to dismiss an employee in order to engage him or her as an independent contractor to perform the same, or substantially the same, work;

o          make statements that they know are false in order to persuade or influence an employee to enter into an independent contracting relationship under which they will perform the same or substantially the same work.

I am an employer – and I dismissed an employee for a number of reasons.  Is there a possibility that I am still liable?

Yes. If just one of the reasons for the adverse action is contrary to these provisions, then an employee may be able to establish a breach and can make a general protections application. Once such an application has been made, the onus will be on the employer (or principal) to establish on the balance of probabilities that its conduct was not for the reason, which is a breach of the general protection provisions.

The process – how do I make a claim?

An application must be made to Fair Work Australia. A small fee, which is indexed annually applies. An application involving an alleged contravention of the general protections will be dealt with at first instance in a conference conducted by Fair Work Australia.

However, employees can elect to go directly to the Federal Court or the Federal Magistrates Court if they wish (a conference will be mandatory if the employee has been dismissed). Where the matter proceeds to court, remedies include compensation, reinstatement and a civil penalty of up to $33,000 in the case of a corporate employer and $6,600 in the case of an individual.

There is no cap on the compensation that may be ordered by a court.

Note however that a dismissed employee cannot make a general protections application relating to dismissal, if he or she has commenced other proceedings in relation to the dismissal (including an unfair dismissal claim).   

How can Nevett Ford help?

Nevett Ford is experienced in industrial and workplace relations and has a long history of working in the area for both employees and employers.

If you are an employee or an employer and you think you might have a general protections claim, or alternatively, have had a general protections claim made against you, contact us and we can assist you.