The general protections provisions of the Fair Work Act 2009 (Cth) are designed to protect individuals from unfair treatment and discrimination in the workplace. Understanding these provisions and how they protect your rights can help you identify avenues for redress if those rights are infringed.
This information is general only and we recommend seeking guidance from an experienced employment lawyer if you are facing legal issues in your workplace.
Understanding General Protections
General protections are a set of safeguards afforded to employees, prospective employees, and even some independent contractors in Australia. These protections ensure that individuals are not subjected to detrimental treatment or discrimination (adverse action) in their employment due to factors such as their personal attributes, family responsibilities or for exercising their workplace rights.
What is Adverse Action?
Adverse action includes a range of actions taken by an employer (or prospective employer) that are detrimental to an employee or job applicant. These actions can include:
- dismissing an employee
- injuring an employee – for example, cutting shifts, making unfavourable changes to working hours
- altering a position to the employee’s detriment
- discriminating between employees
- refusing to hire a prospective employee because of a protected attribute
General Protections Claims
An employee may be able to make a general protections claim (known also as an adverse action claim) if their employer takes adverse action against them for a ‘prohibited reason’, for example:
1. Exercising Workplace Rights
An employer must not take adverse action against an employee because the employee has, exercises, or proposes to exercise a workplace right. Workplace rights include benefits under a workplace law, instrument or order made by an industrial body, for example, taking sick leave, making a complaint about workplace safety, or inquiring about wages and entitlements.
2. Discrimination
Adverse action cannot be taken based on a ‘protected attribute’ which includes an individual’s age, race, colour, sex, sexual orientation, gender identity, marital status, family responsibilities, pregnancy, religion, political opinion, disability, or social origin.
3. Union membership or activity
Employees have a right to participate in (or choose not to be involved in) industrial activities and associations including unions and employer associations. Employees cannot be disadvantaged for being a member of a union, participating in union activities, or refusing to join a union. Similarly, they cannot be forced or coerced into joining a union or taking part in union activities.
4. Temporary absence due to illness or injury
Employees cannot be unfairly treated for absences due to illness or injury.
5. Absence due to family and domestic violence
Employees are entitled to take leave and cannot be penalised for absences related to family and domestic violence.
The following examples illustrate how adverse action might manifest in the workplace:
- An employee is dismissed after informing their employer they are pregnant.
- An employee is demoted after raising concerns about unsafe working conditions.
- A qualified job applicant is refused employment because of their race or ethnicity.
- An employee is denied a promotion because they are a member of a union.
Not all adverse action taken against an employee will be a breach of the general protections provisions and each case must be assessed based on the circumstances. For example, offering a lower salary commensurate with a job applicant’s level of skill and experience is not likely to breach general protections. Similarly, a genuine redundancy (alone) is not generally a breach of general protections. An employer may take adverse action against an employee, provided it is not for a prohibited reason.
Making a General Protections Claim
If you believe you have been subjected to adverse action which has breached your general protections, you can lodge a claim with the Fair Work Commission. You must be able to show that you are eligible to apply, and that your employer took adverse action against you for a prohibited reason. For example, you may be able to apply if your employer has dismissed you (takes adverse action) because you were away from work when you were sick (prohibited reason).
There are strict time limits for lodging a claim relating to dismissal, generally 21 days from the date of dismissal. To support your claim, you will need evidence to demonstrate the adverse action taken, and that it was motivated by a prohibited reason. This evidence may include emails, letters, payslips, witness statements, and any other relevant documentation. Remedies for successful claims can include reinstatement, compensation for lost wages, and damages for personal injury, etc.
If you are considering making a general protections claim, whether it involves a dismissal or other action, we recommend speaking to an experienced lawyer.
Conclusion
General protections laws play a vital role in safeguarding your workplace rights and promoting fair and equitable treatment for everyone. Understanding these laws and the avenues for redress can help you protect yourself from adverse action and ensure your rights are respected.
This information is general only and does not constitute legal advice. If you or someone you know wants more information or needs help or advice, please call (03) 9600 2768 or email enquiry@archerthompson.com.au.