Everything you need to know about General Protections and adverse action
Defending a general protection claim can be time-consuming and costly. The following information is intended to help employers understand how to deal with an employee who threatens to commence or does commence a general protections claim.
The general protections are part of Federal law intended to:
- protect workplace rights
- protect freedom of association
- protect from workplace discrimination, and
- provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.
See the Unfair Dismissal page for information on unfair dismissal laws.
What are the general protections?
The Fair Work Act 2009 (Cth) (FW Act) imposes obligations on employers in relation to their ‘employees’ and confers benefits and rights on employees, and the freedom for employees to exercise and enforce those benefits and rights, including:
- workplace rights;
- the right to engage (or not engage) in industrial activities, or to belong (or not belong) to an industrial association;
- the right to be free from unlawful discrimination; and
- the right to be free from undue influence or pressure in negotiating individual arrangements.
These entitlements or ‘rights’ are protected from certain unlawful actions, including (but not limited to):
- adverse action;
- undue influence or pressure in relation to:
- individual flexibility arrangements under modern awards and enterprise agreements;
- guarantees of annual earnings; and
- deductions from wages.
The term ‘workplace right’ is broadly defined under the FW Act, and exists where a person:
- has a benefit, role or responsibility under a workplace law (such as the FW Act), workplace instrument (such as an award or enterprise agreement) or an order made by an industrial body (such as the Fair Work Commission); and
- has the capacity under a workplace law or workplace instrument to:
- start or take part in a process or proceeding;
- make a complaint or inquiry about their employment to a body; OR
- are an employee and makes a complaint or inquiry about their employment (e.g. an employee enquiring about their pay to their employer).
Who is covered?
The general protections provisions protect persons who are:
- employees (including prospective employees)
- employers (including prospective employers)
- independent contractors (including prospective independent contractors)
- a person (the principal) who has entered into a contract for services with an independent contractor (including a principal who proposes to enter into a contract), and
- an industrial association (including an officer or member of an industrial association)
What is adverse action?
As an employer and/or a manager, you need to be aware that there are a wide variety of circumstances in which you are at risk of being found to have unlawfully taken adverse action against employees or prospective employees.
In the case of an employee, adverse action taken by a person includes doing, threatening, or organising any of the following:
- dismissing the employee; or
- injuring the employee in his or her employment; or
- altering the position of the employee to the employee’s prejudice; or
- discriminating* between the employee and other employees of the employer; or
- ‘threatening’ to do any of the above; and in the case of a prospective employee:
- refusing to employ the prospective employee; or
- discriminating against the prospective employee in the terms or conditions on which the employer offers to employ the prospective employee.
*Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by law.
General protections application
There are two distinctly different processes applied in dealing with general protections applications. The process to deal with an alleged breach will depend on whether or not the breach has resulted in the dismissal of the employee.
In general terms, if the alleged breach of the general protections results in an employee’s dismissal, the application must first be dealt with by the Fair Work Commission in conference before the matter can be taken to court (unless the employee is seeking an interim injunction).
However, if the alleged breach has not resulted in a dismissal, the employee may apply to the Fair Work Commission to deal with the dispute or may proceed immediately to court.
General protections applications must be received by the Fair Work Commission within 21 days of the employee’s dismissal taking effect.
Main concerns for employers
The difficulty with the adverse action provisions is that an employee can raise virtually any issue of concern that has come loose and indirect connection with their employment and rely on that as a workplace right in an adverse action claim. Once an employee claims an employer has taken (or threatened to take) adverse action against him or her, it is the employer who bears the onus of proving that the action was not taken for the prohibited reason (i.e. a reverse onus of proof for employers).
Further, if one of the reasons for the employer’s action is contrary to the provisions then a breach will be established. It does not matter whether other reasons are motivating an employer to take action.
If the employer fails to discharge the onus, the Court will presume that the action was taken for the prohibited reason.
The general protections and adverse action provisions are a complex area of employment law and defending a general protection claim can be expensive and time-consuming. If an employee has lodged any kind of workplace grievance you should seek advice before contemplating terminating the employee’s employment or taking any other kind of action that may disadvantage the employee in the workplace.
NatRoad’s advisers have substantial experience in complaint case management, advising and supporting employers manage employee issues (from a risk management perspective); and preparation of responses employer and representation in general protection proceedings.
For more information and advice contact a NatRoad adviser on (02) 6295 3000 or firstname.lastname@example.org