Gen­er­al pro­tec­tion pro­vi­sions of the Fair Work Act

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 régime 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: