Although many people are likely aware of the Fair Work Act 2009 (Cth) (Act) and the National Employment Standards, the general protections contained in the Act are not as commonly known or understood. Employees and employers should understand the Fair Work general protections. Certain provisions allow an employee to pursue recourse if an employer fails to uphold these protections – particularly regarding unfair dismissal.
1. What are the Fair Work General Protections?
The general protections contained in the Act 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 an employee’s ability to commence proceedings and/or make complaints against the employer.
- This follows on to the protection applied to industrial activities. Industrial activities include an employee taking part in industrial action (e.g. a strike) or an employee becoming a member of a union.
- The last protection refers to discrimination. Discrimination can take the form of action against an employee based on their attributes/characteristics including, for example, race, age or sexuality.
2. General Protections Can Apply to Independent Contractors
There is also a general protection that prevents an employer from hiring an employee as an independent contractor (commonly referred to as a ‘sham contract’). Thus the general protections may also extend to independent contractors.
3. Who do General Protections Apply To?
General protections have a wide reach. Not only do they protect independent contractors as noted above, but they also include prospective employees, industrial associations and constitutionally-covered entities (e.g. a federal government organisation)
4. What is the Purpose of General Protections?
General protections exist to protect existing or potential employees. As an employer is required to comply with the general protections, an employee may use a contravention of the general protection as a cause of action against the employer. An employee typically does this by lodging a complaint with the Fair Work Ombudsman. Penalties of up to $54,000 can be issued if an employee is 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 undertake any of the following actions:
- Adverse action – including dismissal, changing a contract to be more disadvantageous, not hiring a prospective employee;
- Coercion – including threatening to prevent an employee to partake in industrial action, threatening not to employ a particular person, reassigning duties to the employee’s disadvantage;
- Misrepresentations – including providing false details about an employee’s rights, including their right to partake in industrial activity or be a member of a union; and
- Undue influence or pressure – including significant pressure associated with creating an arrangement that does not comply with the National Employment Standards or applicable award.
6. What Types of General Protection Applications Exist?
The Fair Work Ombudsman accepts applications that are based on disputes or dismissals. Dispute applications are relevant when an employee is still working within an organisation or was a potential employee that has not been provided with the job. A dispute application can nevertheless claim that a contravention of the general protections has occurred. A dismissal application is relevant for employees that have been dismissed. The employees need to believe that the dismissal was a breach of the general protections and must lodge their 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, an employee 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.
It is important to keep general protections in mind and understand the obligations of an employer to comply with them or otherwise possible penalties in legal action. If you have any questions, get in touch with our employment lawyers on 1300 544 755.