General Protections (Part 3-1 Fair Work Act)

Based on the contribution of Craig Dowling and Neill Campbell for The Law Handbook 2016, published by Fitzroy Legal Service, originally amended by ClareMcKenzie for the NT Law Handbook, as amended by Bradley Allen Love Lawyers, Canberra, by Gabrielle Sullivan, May Oboodi and Robert Allen and current to March 2018.

Introduction

General protections safeguard the rights of employees, employers and (in certain circumstances) independent contractors in the workplace. In general, there are two types of general protections issues:

1. General protection disputes concerning termination of employment; and
2. General protection disputes concerning adverse actions not including termination of employment.

A key element of the general protections scheme is that it is not limited to only employees. Prospective employees and, in certain circumstances, non-employee workers such as independent contractors, may enjoy the benefit of general protections.

It is important to note that an employee has 21 days to lodge a general protections application with the Fair Work Commission. The Fair Work Commission in the vast majority of cases requires that the employer and the employee hold a conference in order to attempt to settle the dispute prior to making a decision on the matter.

The general protections in the Fair Work Act are divided into the categories of workplace rights, industrial activities, and other protections. Essentially, a person must not take “adverse action” against another person on the basis of the general protections.

Adverse action includes the employer doing, threatening or organising any of the following actions (s 342 Fair Work Act):

• An employer dismissing an employee, injuring them, unfavourably altering their employment position or discriminating against them.
• A prospective employer refusing to employ or discriminating against a prospective employee.
• A principal terminating the contract of an independent contractor, injuring them, unfavourably altering their employment position, refusing to use their services, or refusing to supply them with goods or services.
• A principal who proposes to enter into a contract with an independent contractor refusing to engage them, discriminating against them, refusing to make use of their services, or refusing to supply goods and services to them,
• An employee or independent contractor ceasing to work for or taking industrial action against their employer or principal.

Workplace Rights

A person must not take adverse action against another person because the other person (s 340 Fair Work Act):

• has a workplace right;
• has (or has not) exercised a workplace right; or
• proposes to, or not to, exercise a workplace right.

A person has a ‘workplace right’ if (s 341 Fair Work Act):

• they are entitled to a benefit under a workplace law, workplace instrument, or order made by an industrial body;
• they have a role or responsibility under a workplace law, workplace instrument or order made by an industrial body;
• they are able to initiate or participate in a process or proceeding under a workplace law or workplace instrument;
• they are able to make a complaint or inquiry to a person or body who has the capacity to seek compliance with a workplace law or instrument; or
• they are able to make a complaint or inquiry in relation to their employment.

Examples from the Fair Work Bill 2009 Explanatory Memorandum:

• A workplace has an enterprise agreement in place that provides for the appointment of a harassment officer. An employee performing this role is protected against adverse action in relation to carrying out that role.
• Rachel is employed in a night fill position. The ladder that she uses at work to stock the shelves is missing a rung which makes it dangerous for her to climb. Rachel raises this issue with her employer. Under the Fair Work Act, Rachel has a workplace right because she has made a complaint/inquiry to her employer in relation to her safety concerns regarding the ladder.

Industrial Activities

A person must not take adverse action against another person because the other person (s 346 Fair Work Act):

• is or is not an officer or member of an industrial association; or
• participates or does not participate in industrial activity.

Example from the Fair Work Bill 2009 Explanatory Memorandum:

• Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking child care workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union. If the other employees agree to the meeting, they will be an industrial association according to the Fair Work Act.

Other Protections

Two key general protections considered as “other protections” under the Fair Work Act are Discrimination and Temporary Absences:

Discrimination (s 351 Fair Work Act)

Employers must not discriminate against current and prospective employees on the basis of their race, colour, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

There is significant overlap between the protections that employees receive under the discrimination element of the general protections and generally applicable general protections legislation (see Discrimination).

Temporary Absence – illness or injury (s 352 Fair Work Act)

An employer must not dismiss or otherwise take adverse action against an employee because the employee is temporarily absent from work because of illness or injury.

The Fair Work Act also provides general protections against Bargaining Services Fees, Coverage by Particular Instruments, Coercion, and Objectionable Terms.

If a person believes that adverse action has been taken against them in contravention of their general protections, they can make an application to the Fair Work Commission. If the application is for a dismissal dispute, it must be lodged within 21 days of the dismissal.

The Federal Circuit Court and Federal Court are also able to enforce general protections.

For more information on general protections, see the Fair Work Commission Benchbook on general protections at www.fwc.gov.au.

Remedies

After the Fair Work Commission receives a general protections application involving dismissal, it will arrange a conciliation conference between the parties. If the matter does not settle at the conference, the parties can agree for the Fair Work Commission to arbitrate the dispute, otherwise the applicant will need to commence proceedings in the Federal Circuit Court or Federal Court. If the court ultimately finds in favour of the applicant, it may make “any order [it] considers appropriate” (s 545 Fair Work Act), including reinstatement to the employee’s original role in the event that employee was dismissed or moved to a different role, or the payment of compensation to the employee.