The general protections provisions of the Fair Work Act 2009 (Cth) are designed to protect individuals from unfair treatment and discrimination in the workplace. Understanding these provisions and how they protect your rights can help you seek avenues for redress if those rights are infringed.
This information is general only and we recommend seeking guidance from an experienced employment lawyer if you are facing legal issues in your workplace.
Understanding General Protections
General protections are a set of safeguards afforded to employees, prospective employees, and even some independent contractors in Australia. These protections ensure that individuals are not subjected to detrimental treatment or discrimination (adverse action) in their employment due to factors such as their personal attributes or family responsibilities, or for exercising their workplace rights.
What is Adverse Action?
Adverse action includes a range of actions taken by an employer (or prospective employer) that are detrimental to an employee or job applicant. These actions can include:
- dismissing an employee
- injuring an employee in their employment – for example, cutting shifts or making unfavourable changes to working hours
- altering the employee’s position to the employee’s detriment – for example demoting an employee or overlooking an employee for promotion
- discriminating between employees
- refusing to hire a prospective employee because of a protected attribute
General Protections Claims
An employee may be able to make a general protections (sometimes referred to as an adverse action claim) if their employer takes adverse action against them for a ‘prohibited reason’, for example:
- Exercising a workplace right: An employer must not take adverse action against an employee because the employee has, exercises, or proposes to exercise a workplace right. Workplace rights include benefits under a workplace law, instrument or order made by an industrial body, for example, taking sick leave, making a complaint about workplace safety, or inquiring about wages and entitlements.
- Discrimination: Adverse action cannot be taken based on a ‘protected attribute’ which includes an individual’s age, race, colour, sex, sexual orientation, gender identity, marital status, family responsibilities, pregnancy, religion, political opinion, disability, or social origin.
- Union membership or activity: Employees have a right to participate in (or choose not to be involved in) industrial activities and associations including unions and employer associations. Employees cannot be disadvantaged for being a member of a union, participating in union activities, or refusing to join a union. Similarly, they cannot be forced or coerced into joining a union or taking part in union activities.
- Temporary absence due to illness or injury: Employees cannot be unfairly treated for being absent from work due to an illness or injury.
- Absence due to family and domestic violence: Employees are entitled to take leave and cannot be penalised for absences related to family and domestic violence.
The following examples illustrate how adverse action might manifest in the workplace:
- An employee is dismissed after informing their employer they are pregnant.
- An employee is demoted after raising concerns about unsafe working conditions.
- A qualified job applicant is refused employment because of their race or ethnicity.
- An employee is denied a promotion because they are a member of a union.
Not all adverse action taken against an employee will constitute a breach of their general protections and each case must be assessed according to the particular circumstances. Adverse action can be taken against an employee, provided it is not taken for a prohibited reason. For example, offering a lower salary commensurate with a job applicant’s level of skill and experience is not likely to be a breach of general protections. Similarly, a genuine redundancy (alone) does not generally constitute a breach of general protections.
Making a General Protections Claim
If you believe you have been subjected to adverse action in breach of your general protections, you can lodge a claim with the Fair Work Commission. You must be able to show that:
- you are eligible to apply; and
- your employer took adverse action against you for a prohibited reason.
For example, you may be able to apply if your employer has dismissed you (takes adverse action) because you were away from work when you were sick (a prohibited reason).
There are strict time limits for lodging a general protections claim involving dismissal, being 21 days from the date of the dismissal. To support your claim, you will need evidence to demonstrate the adverse action taken and that it was motivated by a prohibited reason. This evidence may include emails, letters, payslips, witness statements, and any other relevant documentation.
If there is no dismissal, you can lodge a general protections claim not involving dismissal which is not subject to the strict 21 day time limit.
The Commission will initially attempt to resolve the dispute through conciliation. If conciliation fails, the Commission will issue a Certificate which indicates that the matter was unable to be settled. Once a certificate is issued, you can elect to proceed to a formal arbitration hearing for a determination in the Fair Work Commission or alternatively, make an application to the Federal Court or the Federal Circuit and Family Court. You have 14 days after a certificate is issued to take further action in relation to a general protections claim.
Remedies for successful claims can include reinstatement, compensation for lost wages and damages for personal injury or for hurt, distress and humiliation. Generally, each party will need to bear their own costs in relation to a general protections claim.
This is a tricky jurisdiction as the employer bears the onus of proving no adverse action was taken for a prohibited reason so what may look like a strong claim from an employee’s perspective may not be the case once the decision-maker’s evidence is taken into account. If you are considering making an adverse action claim, we recommend speaking to an experienced lawyer.
Conclusion
General protections laws play a vital role in safeguarding your workplace rights and promoting fair and equitable treatment for everyone in the workplace. Understanding these laws and the avenues for redress can help you protect yourself from adverse action and ensure your rights are respected.
This information is general only and does not constitute legal advice. If you or someone you know wants more information or needs help or advice, please contact us on (02) 5127 5261 or email [email protected].