The rights of employees and employers protected by the Fair Work Act 2009 (Cth) (FWA) form the foundation of employment law in Australia. The ‘general protections’ under the FWA form a vital component of the FWA, aiming to protect workplace rights, protect freedom of association with industrial organisations such as unions, and prevent workplace discrimination: FWA s 336.
A copy of the FWA can be found here.
What are the ‘General Protections’?
The FWA protects employees, employers and independent contractors by prohibiting ‘adverse actions’ for a ‘prohibited reason’ under the FWA. FWA s 342 sets out examples of ‘adverse actions’:
- An employer dismisses, injures, alters the position or discriminates against an employee
- A prospective employer refuses to employ or discriminates against a prospective employee
- A principal who has contracted with an independent contractor terminates the contract, injures the contractor, or refuses to make use of the services offered by the contractor
- An employee ceases work for the employer or takes industrial action against the employer
- An industrial organisation organises or takes industrial action or action that prejudices another
‘Adverse action’ includes threatening to take such action (FWA s 342(2)) but does not include an action that is authorised under Commonwealth, State or Territory law (FWA s 342(3)).
The FWA also protects people from coercion, undue influence or pressure, and misrepresentations.
What are the ‘Prohibited Reasons’?
‘Adverse actions’ taken for ‘prohibited reasons’ are not permitted by the FWA.
‘Adverse actions’ cannot be taken against a person because they have a workplace right, have exercised such right or they propose to exercise such right: FWA ss 340-5.
‘Adverse actions’ cannot be taken against a person because they are an officer or member of an industrial organisation, or they engage or propose to engage in industrial activity: FWA ss 346-50. In addition, there are protections for ‘workplace delegates’ under FWA ss 350A and 350C. They are people appointed or elected to be delegates or representatives for the members of an organisation who work in a particular enterprise: FWA s 350C. For example, employers cannot unreasonably fail or refuse to deal with a workplace delegate, or prevent the exercise of their rights: FWA s 350A(1).
‘Adverse actions’ cannot be taken against an employee or prospective employee for discriminatory reasons, such as because of their race, gender, breastfeeding, age, family or carer responsibilities, disability, subjection to family or domestic violence, pregnancy, religion, or politics: FWA s 351(1).
The ‘adverse action’ of dismissal of an employee cannot occur because an employee is temporarily absent from work because of an illness or injury: FWA s 352.
The FWA also prevents ‘sham arrangements’, where employers employ people as independent contractors rather than employees to avoid paying certain taxes and entitlements that the person would be entitled to if they were employees. Employers cannot represent that a contract of employment is a contract to work as an independent contractor (FWA s 357), dismiss an employee to re-engage the individual as an independent contractor performing the same or substantially the same work (FWA s 358), and making false statements to persuade a person to work as an independent contractor performing the same or substantially the same work as an employee (FWA s 359).
Multiple Reasons
If there are multiple reasons for the ‘adverse action’, the FWA deems the ‘adverse action’ prohibited if any of the reasons is a ‘prohibited reason’ under the FWA: FWA s 360.
How We Can Help?
If you have any queries, please do not hesitate to contact us at admin@valorumlaw.com.au or voregan@valorumlaw.com.au. Our employment lawyers are on hand to assist you in navigating employment claims and proceedings in the Fair Work Commission and in other courts and tribunals, and other advice relating to employment matters.
The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
Contributors: Harry Chen
