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30 April 2010 General protection provisions of the Fair Work Act

By Richard Ottley, Partner and Warwick Ryan, Partner


In Brief

The General Protection Provisions of the Fair Work Act (the Act) (being a consolidation and enhancement of various employee rights previously contained in the Workplace Relations Act) present a significant challenge to all employers. The General Protection Provisions cover, amongst other things,:

  • Workplace rights of the employee (see below).

  • The rights of employees to participate in industrial activities (known as “freedom of association” rights).

  • Rights protecting the employee from discrimination in the workplace.

  • Rights protecting the employee from entering into sham contractor arrangements.

Workplace rights

A person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised, or proposes to exercise or not to exercise, a workplace right. A person must also not take adverse action against another person to prevent the exercise of a workplace right.

A workplace right is broadly defined, and includes where a person:

  • is entitled to the benefit of or has a role or responsibility under a workplace law or instrument (such as an award or enterprise agreement) or an order made by an industrial body.

  • is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument

  • is able to make a complaint or enquiry:

    • to a person or body under a workplace law to seek compliance with that workplace law or workplace instrument (eg the Fair Work Ombudsman);

    • if the person is an employee - in relation to their employment.
Claims against employers

An employee who has been dismissed can make a claim under these provisions against an employer, amongst other things, if that employee has exercised their right to make a complaint to their employer in relation to their employment prior to their dismissal (on the basis that the employer has taken adverse action against the employee by dismissing them). Also the employee can make a claim if the employee has been terminated following a complaint they made for example to the Workplace Ombudsman regarding their employer’s alleged failure to comply with a workplace law.

Adverse action

Adverse action in the above context includes: dismissing an employee;

  • injuring an employee in their employment;

  • altering the position of the employee to their prejudice; or

  • discriminating between the employee and other employees of the employer.

Coercion and undue influence

The Act prohibits a person (an employer) from taking or threatening to take any action against their employee with intent to coerce the employee to exercise or not exercise a workplace right. An employer must not exert undue influence on an employee in relation to a decision by the employee to, amongst other things:

  • agree to or terminate an individual flexibility agreement;

  • accept a guarantee of annual earnings (but note contravention will not occur if a prospective employer makes an offer of employment conditional on a prospective employee accepting a guarantee of annual earnings).

  • agree or not to agree to a deduction from amounts payable to the employee in relation to work.

  • make or not make an arrangement under the National Employment Standards (NES).

False or misleading representations

A person must not knowingly or recklessly make any false or misleading representation about:

  • the workplace rights of another person;

  • other exercise or the effect of the exercise of a workplace right by another person.

The obligation not to mislead a person regarding their workplace rights applies not only to existing employees, but also prospective employees. It supplements those Trade Practices Act provisions which proscribe corporations from engaging in misleading conduct concerning the availability, nature, terms and conditions of employment which may be offered.

Other protections

Employees who engage in lawful industrial activity must not be discriminated against. Protection from discrimination also is conferred in relation to similar grounds to those referred to in the unlawful termination provisions. Discrimination on the grounds of temporary absence from work is also prohibited. Employers should be careful to ensure that they take care to understand whether or not they are able to offer a person a contractor arrangement as opposed to an employee contract. Penalties exist for employers who offer sham contractor arrangements.

Onus of proof

Where a breach of these provisions is alleged, the onus is on employers to prove that they did not act for a particular reason or with the particular intent (that constitutes the contravention). It is enough to attract liability if the reasons for taking adverse action include a reason which is prohibited. Applications under the General Protection Provisions are made to Fair Work Australia. If the application concerns a dismissal then the application must be made within 60 days from dismissal.

Minimising exposure to the General Protection Provisions

Having read the above, employers may be questioning what they can do to minimise their exposure to the General Protection Provisions. Strategies to minimise risk include:

  • Taking time out to read the NES so they better understand some of the employee workplace rights they are dealing with;

  • Having policies in place to address employee grievances so that they can respond quickly and in a consistent way to grievances;

  • Review their policies to ensure that they are not inadvertently misleading employees as to their rights under the new industrial regime and to ensure that the policies reflect new entitlements under the Act;

  • Review their policies to ensure that they do not contain provisions which might be regarded as discriminatory; and

  • Have a robust disciplinary and performance management policy and process, to protect against vexatious claims by employees who are being performance managed or terminated.

If you have any queries or require further information please do not hesitate to contact:

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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