A recent phenomenon in industrial relations cases is the rise in ‘General Protections’ claims which some members may have read or heard about. This is the first of two articles that explains what they are and how the application is made to the Commission.
What is a General Protections Claim?
General protections seek to:
• protect workplace rights
• protect freedom of association
• provide protection from workplace
• provide effective relief for people who have been discriminated against, victimised, or have experienced other unlawful treatment.
The general protections provisions can be found in Part 3(1) of the Fair Work Act 2009 (the Fair Work Act).
Who is covered by general protections laws?
General protections laws apply to:
• employees and prospective employees
• employers and prospective employers
• independent contractors and prospective independent contractors
• a person (the principal) who has entered into or who has proposed to enter into a contract for services with an independent contractor
• an industrial association, including an officer or member of an industrial association.
General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the ACT or Northern Territory, or other trade or commerce employers.
They also protect from actions taken in a Territory or a Commonwealth place.
A constitutionally covered entity can be any of the following:
A constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name.
• the Commonwealth (i.e. the federal government and its departments)
• A Commonwealth authority (such as the Fair Work Commission)
• A body corporate incorporated in a Territory
• an organisation.
How do general protections work?
There are a number of general protections provisions. Some provisions protect employees from adverse action being taken because of a particular reason, such as action taken against someone because he or she has a particular right or attribute.
Adverse action against an employee or potential employee might include:
• dismissing them
• not giving them their legal entitlements
• changing their job to their disadvantage
• treating them differently than others
• not hiring them
• offering them different (and unfair) terms and conditions, compared to other employees.
Other provisions contain a direct ban on some types of action, such as applying pressure to an employee to do certain things. Others ban people from taking actions with a particular intent, such as taking action against someone with the intent of coercing them to do something.
What are the protections?
A person (such as an employer),must not take any adverse action against another person (such as an employee),because that person has a workplace right, has exercised or not exercised a workplace right or proposes to exercise or not exercise that workplace right.
Workplace rights include:
• receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
• commencing or participating in a process or proceeding under a workplace law(such as the Fair Work Act), or instrument (such as a modern award or enterprise agreement), such as taking court action
• being able to make a complaint or enquiry about one’s employment.
• A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.
• Industrial activities cover activities associated with freedom of association including:
• Becoming or not becoming a member of an industrial association (e.g. trade unions, employer organisations)
• Representing or advancing the views, claims or interests of an industrial association
• Taking part in protected industrial action or refusing to take part in industrial action.
Protection from discrimination
An employer must not take adverse action against an employee (or prospective employee) because of their:
• sexual orientation
• physical or mental disability
• marital status
• family or carer’s responsibilities
• political opinion
• national extraction
• social origin.
An employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury of a kind prescribed by Regulation 3.01 of the Fair Work Regulations 2009
Sham contracting arrangements
An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.
Coercion and misrepresentations
A person must not take or organise any action against another person, or threaten to do so, with the intent to coerce them, or anyone else, to:
• exercise or not exercise a workplace right
• propose to exercise or not exercise a workplace right, or
• exercise or propose to exercise a workplace right in a particular way.
A person must also not knowingly or recklessly make a false or misleading representation about another person’s workplace rights, the exercise of those rights, or the effect of exercising those rights.
Undue influence or pressure
An employer must not put undue influence or pressure on an employee about a decision to:
make or not make an agreement or arrangement under the National Employment Standards, a modern award or an enterprise agreement
• agree to or terminate an individual flexibility arrangement
• accept a guarantee of annual earnings, or
• agree or not agree to a deduction from their pay.
Note: some of the protections only apply to particular situations, such as a dismissal, and only certain people may be able to apply, such as an employee.
For example, section 352 of the Fair Work Act, which deals with temporary absence due to illness or injury, applies only to an employee who has been dismissed.
Are you concerned that you may be subject to a General protections claim? Call us to discuss.