The general protections provisions of the Fair Work Act 2009 (Cth) 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. 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 for employees, prospective employees, and some independent contractors in Australia. These protections ensure individuals do not face detrimental treatment or discrimination (adverse action) in their employment. This includes situations involving personal attributes, family responsibilities, or the exercise of workplace rights.
What is Adverse Action?
Adverse action includes a range of actions an employer (or prospective employer) takes that harm an employee or job applicant.
These actions can include:
- dismissing an employee
- injuring an employee – for example, cutting shifts or 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 (also known as an adverse action claim). This applies if their employer takes adverse action against them for a ‘prohibited reason’.
- Exercising a workplace right: An employer must not take adverse action against an employee because the employee exercises or proposes to exercise a workplace right. Workplace rights include benefits under a workplace law, instrument, or order made by an industrial body. Examples include taking sick leave, making a complaint about workplace safety, or asking about wages and entitlements.
- Discrimination: An employer cannot take adverse action based on a ‘protected attribute’. This includes age, race, colour, sex, sexual orientation, gender identity, marital status, family responsibilities, pregnancy, religion, political opinion, disability, or social origin.
- Union membership or activity: Employees have a right to participate in, or choose not to participate in, industrial activities and associations. This includes unions and employer associations. Employers cannot disadvantage employees for union involvement or refusal to join. They also cannot force or coerce employees to join or participate.
- Temporary absence due to illness or injury: Employers cannot treat employees unfairly for absences due to illness or injury.
- Absence due to family and domestic violence: Employees are entitled to take leave. Employers cannot penalise them for absences related to family and domestic violence.
Examples of Adverse Action
The following examples show how adverse action might occur in the workplace:
- An employer dismisses an employee after the employee informs them they are pregnant.
- An employer demotes an employee after the employee raises concerns about unsafe working conditions.
- An employer refuses to hire a qualified job applicant because of their race or ethnicity.
- An employer denies an employee a promotion because they are a member of a union.
Not all adverse action breaches the general protections provisions. Each case depends on the circumstances.
For example, offering a lower salary that matches a job applicant’s skill and experience is not likely to breach general protections. A genuine redundancy alone is also not generally a breach. An employer may take adverse action, provided they do not act for a prohibited reason.
Making a General Protections Claim
If you believe your employer has subjected you to adverse action that breaches your general protections, you can lodge a claim with the Fair Work Commission.
You must show that you are eligible to apply. You must also show that your employer took adverse action for a prohibited reason. For example, you may be able to apply if your employer dismissed you because you were away from work while sick.
There are strict time limits for lodging a claim relating to dismissal. This is generally 21 days from the date of dismissal.
To support your claim, you will need evidence. This should show the adverse action and the prohibited reason behind it. Evidence may include emails, letters, payslips, witness statements, and other relevant documents.
Remedies for successful claims can include reinstatement, compensation for lost wages, and damages for personal injury.
If you are considering making a general protections claim, whether it involves dismissal or another action, we recommend speaking to an experienced lawyer.
Conclusion
General protections laws play a vital role in safeguarding workplace rights. They also promote fair and equitable treatment for everyone.
Understanding these laws and the available avenues for redress can help you protect yourself from adverse action and ensure your rights are respected.
This information is of a general nature only. You should obtain professional advice relevant to your circumstances.
If you or someone you know wants more information or needs help or advice, please call 02 6621 2481 or email [email protected].