Table of Contents
- 1. What Are the Fair Work General Protections?
- 2. Independent Contractors
- 3. Who Are General Protections For?
- 4. What is Considered a Contravention of General Protections?
- 5. What Types of General Protection Applications Exist?
- 6. What Are the Possible Outcomes of a General Protections Claim?
- 7. How Do I Protect My Business From a General Protections Claim?
- Key Takeaways
As an employer, you make daily decisions that affect your employees. That is why you must know and understand the protections granted to employees under the Fair Work Act 2009 (the Act). Some provisions empower your employees to seek remedies against your business if you do not uphold these protections. This article will highlight the key aspects of Fair Work General Protections that you, as an employer, should understand.
1. What Are the Fair Work General Protections?
The general protections contained in the law refer to three distinct areas:
- Workplace Rights
As an employer, it is important to recognise that your employees possess significant workplace rights. These rights stem from entitlements granted by the Act or relevant modern awards. Workplace rights encompass various aspects, such as an employee’s ability to initiate proceedings or lodge complaints against you. Common workplace rights that employees may exercise include:
- taking paid personal leave;
- taking parental leave; or
- requesting flexible working arrangements.
Understanding and respecting these rights fosters a positive work environment and ensures compliance with legal obligations.
- Industrial Activities
Your employees also have the right to choose whether to participate in industrial activities or not. Industrial activities include taking part in industrial action like joining a strike or becoming a member of a union.
- Discrimination
You must ensure that you do not discriminate against your employees based on protected attributes or characteristics. These include, but are not limited to:
- race;
- religion;
- sex;
- age; or
- family or carer’s responsibilities.
2. Independent Contractors
Misrepresenting an employment relationship as an independent contracting arrangement can put you, the employer, in breach of general protection provisions. When you mislabel an employee as a contractor, you might dodge responsibilities like paying employee entitlements such as superannuation contributions, taxes, leave benefits, and ongoing salary. However, this can lead to financial penalties and potential underpayment claims from your contractors.
Continue reading this article below the form3. Who Are General Protections For?
As a business owner, you might think about hiring people for various roles that fit your business. Remember, general protections apply broadly. They safeguard not only independent contractors, as mentioned earlier, but also:
- prospective employees;
- industrial associations; and
- entities covered under the constitution, such as a federal government organisation.
4. What is Considered a Contravention of General Protections?
You might breach general protections if you take adverse action against a person for an unlawful reason, such as:
- that they exercised or wanted to exercise a workplace right.
- a protected attribute or characteristic.
- that they were involved in industrial activities.
Adverse action is a broad term. It does not just mean firing an employee or contractor for an unlawful reason but also includes any decision that harms the individual.
You may go against general protection if you do any of the following:
- take adverse action, such as:
- firing someone;
- making unfavourable changes to a contract; or
- not hiring a potential employee.
- coerce employees by:
- threatening them to stop participating in industrial action;
- threatening not to hire them; or
- giving the employee worse duties.
- make false claims, like giving wrong information about an employee’s rights, including their right to join a union or participate in industrial activity.
- putting undue pressure on an employee.
5. What Types of General Protection Applications Exist?
If someone files a general protection application against you, you might receive a dispute or dismissal application.
An employee files a dispute application if your company still employs them or if you rejected a job applicant in violation of general protections.
However, if you dismiss an employee in violation of general protections, the employee can file a dismissal application. They have only 21 days from their dismissal date to file a general protection application. It is important to note that the Fair Work Commission (the Commission) may extend this timeframe in certain situations.
Remember, there is no minimum employment period that your employees must fulfil before they can file a general protection application against you. Essentially, an employee can file such an application before or as soon as they start working for you.
6. What Are the Possible Outcomes of a General Protections Claim?
The outcomes of a general protection application vary based on the type of claim made and whether both parties reach a settlement. For instance, the Commission might:
- direct you to reinstate the applicant.
- require you to compensate the applicant. Unlike unfair dismissal claims, compensation for general protection claims has no limit.
Depending on the severity of the breach, you might also face financial penalties.
7. How Do I Protect My Business From a General Protections Claim?
Before making any decisions that could negatively affect someone who might file a claim against you, such as a prospective employee, it is important to understand your employees’ general protections. Ensure that your decisions are not based on unlawful reasons. To reduce potential risks, seek legal advice before taking any adverse actions against an employee.
A practical step to avoid general protection claims is to have comprehensive company policies in place. Follow these policies consistently when making decisions that affect individuals, applying them equally to everyone.
It is also a good idea to keep written records of meetings or discussions with individuals or employees, like performance reviews. If someone does file a general protection claim against you, you can use these records to show that any actions taken were lawful.
As an employer, it is essential to understand what employment laws have changed and their implications for your business — particularly the changes to the Fair Work Act 2009 through the new Closing the Loopholes legislation.
Key Takeaways
As an employer, you need to follow all the processes that employment legislation requires. These rules do not just protect employees from mistreatment but also safeguard prospective employees, independent contractors, industrial associations, and constitutionally covered entities.
If you have any questions about the general protections, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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