You may have heard of the National Employment Standards and the Fair Work Act, but do you know and understand the general protections they provide? Both you and your employer should understand the fair work general protections. Certain provisions allow you as an employee to pursue remedies if an employer fails to uphold these protections. This is particularly the case with unfair dismissal.

1. What Are the Fair Work General Protections?

The general protections contained in law refer to three distinct areas:

  • workplace rights;
  • industrial activity; and
  • discrimination.

Workplace rights refer to, for example, the National Employment Standards or the award that applies to a particular job. Broadly it also includes your ability as an employee to commence proceedings or make complaints against the employer.

This is in addition to the protection given for industrial activities. Industrial activities include taking part in industrial action (for example, a strike) or becoming a member of a union.

The final protection concerns discrimination. Discrimination can take the form of adverse action against you based on your attributes or characteristics including, for example, race, age or sexuality.

2. General Protections Can Apply to Independent Contractors

There is also general protection that prevents an employer from hiring you as an independent contractor (commonly referred to as a ‘sham contract’). Therefore, the general protections may also extend to independent contractors.

3. To Whom Do General Protections Apply?

General protections have a wide reach. Not only do they protect independent contractors as noted above, but they also protect:

  • prospective employees;
  • industrial associations; and
  • constitutionally-covered entities (for example, a federal government organisation).

4. What Is the Purpose of General Protections?

General protections exist to protect existing or potential employees. Employers are required to comply with the general protections. As a result, you can bring a claim against an employer for contravening the protections. You can do this by lodging a complaint with the Fair Work Commission. Penalties of up to $54,000 can be issued if you are successful for a claim arising from the contravention of a general protection.

5. What Is Considered a Contravention of a General Protection?

An employer may contravene a general protection if they do any of the following:

  • take adverse action, including:
    • dismissal;
    • making disadvantageous changes to an employment contract; not hiring a prospective employee;
  • coerce employees, including:
    • threatening employees to prevent them from partaking in industrial action;
    • threatening not to employ a particular person;
    • reassigning duties to the employee’s disadvantage;
  • make misrepresentations, for example, providing false details about an employee’s rights, including their right to partake in industrial activity and to be a member of a union; and
  • place undue influence or pressure on an employee.

For example, placing significant pressure on an employee to create or agree to an agreement that does not comply with the National Employment Standards or an applicable award.

6. What Types of General Protection Applications Exist?

The Fair Work Commission accepts applications based on disputes or dismissals. Dispute applications are relevant when you are still working within an organisation or if you were refused the job as a potential employee. A dispute application can nevertheless claim that an infringement of the general protections has occurred.

A dismissal application is relevant if you were dismissed. You must believe that the dismissal was a breach of the general protections and you must also lodge your application within 21 days of dismissal.

7. What Are the Effects of General Protections on Unfair Dismissal?

If an employer has contravened a general protection, you will not have to satisfy the minimum employment period otherwise required for other unfair dismissal claims. The minimum employment period is usually six months or twelve months if an employer is a small business. Employers must know this when terminating employees.

Key Takeaways

You should be aware of the general rights and protections that the Fair Work Act and National Employment Standards provide. These general protections broadly cover the areas of:

  • workplace rights;
  • industrial action; and
  • discrimination.

You may be able to rely on your employer’s infringement of these protections to make a claim against your employer. This is particularly the case if you are looking to bring an unfair dismissal claim against your employer. If you have any questions about the fair work general protections, get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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