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What are general protections?
The general protections are intended to:

  • protect workplace rights
  • protect freedom of association
  • provide protection from workplace discrimination, and
  • provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse Actions: Examples

Adverse actions that can be taken against an employee or potential employee might include:

  • dismissing them
  • not giving them their legal entitlements
  • changing their job to their disadvantage
  • treating them differently than others
  • not hiring them
  • offering them different (and unfair) terms and conditions, compared to other employees.

“Importantly, under Australian laws, any adverse action against an employee will be presumed to have been taken for an illegitimate reason unless the employer can prove to the contrary. The onus of proof lies with the employer, who must then prove that the adverse action was not a result of the employee attempting to exercise their workplace rights.” – says Sean Wilson, BetterHR CEO.

Workplace Rights

Workplace rights include:

  • receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
  • commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action
  • being able to make a complaint or inquiry about your employment.

Industrial activities

A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.

Industrial activities cover activities associated with freedom of association including:

  • becoming or not becoming a member of industrial associations (eg unions and employer associations)
  • representing or advancing the views, claims or interests of an industrial association
  • taking part in protected industrial action, or
  • refusing to take part in industrial action.

Protection from discrimination

An employer also must not take adverse action against an employee because of an attribute of that person, including their:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin.

Sham contracting arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee.

An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.

Types of general protections disputes

There are 2 types of general protections disputes that can be dealt with by the Fair Work Commission:

  • general protections dismissal disputes
  • general protections non-dismissal disputes.

General protections dismissal disputes cannot be heard by a court without the parties first having a conference at the Commission. This does not apply to non-dismissal disputes.

What is the role of the courts?

The Federal Circuit Court and the Federal Court have the power to enforce general protections laws. In the event that a person is found to have breached a general protections law, these courts have the power to:

  • issue a fine (known as a pecuniary penalty)
  • make an order for reinstatement
  • make an order awarding compensation for loss
  • grant an injunction or interim injunction
  • award costs.

Unlawful termination

If an employee that is not a national system employee has been dismissed and alleges their dismissal was in contravention of s.772 of the Fair Work Act 2009, they may make an unlawful termination application to the Fair Work Commission.

Note: an employee can only make an unlawful termination application if they are not eligible to make a general protections application.

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