General protections

Introduction

Under the heading “Rights and responsibilities of employees, employers, organisations, etc.” Part 3–1 of the FW Act sets out what it describes as “General Protections”.

The Explanatory Memorandum to the FW Act describes the purpose of the general protections as ensuring “fairness and representation at the workplace by recognising the right to freedom of association and preventing discrimination and other unfair treatment”.

The general protections are relevantly divided into workplace rights, industrial activities, and other protections. The protections relating to workplace rights broadly include employment entitlements and the freedom to exercise and enforce those entitlements. The protections relating to industrial action broadly include the freedom to be or not to be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association. The other protections include the taking of adverse action, including dismissal of employees for a range of reasons including their race, colour, sex, age, marital status and other matters. The protections are dealt with separately below.

Workplace rights

One protection provided for by part 3-1 of the FW Act is a prohibition on a person taking adverse action against another person because the other person:

has a workplace right; or

has, or proposes to, exercise a workplace right (s 340).

“Workplace right” is defined by the FW Act (s 341(1)) as including:

a the entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;

b initiating, or participating in, a process or proceeding under a workplace law or workplace instrument; or

c the ability to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument or an inquiry in relation to the person’s employment.

The FW Act also defines a “process or proceedings under workplace law or workplace instrument” as including:

court proceedings;

protected industrial action;

a protected action ballot; and

making, varying or terminating an enterprise agreement and other matters (s 341(2)).

“Adverse action” is defined by section 342 of the FW Act. That section sets out a table describing the relevant “adverse action” depending on the different relationships between the relevant parties. If the adverse action is taken by an employer against an employee the adverse action includes:

a dismissing the employee; or

b injuring the employee in their employment;

c altering the position of the employee to the employee’s prejudice; or

d discriminating between the employee and other employees of the employer.

Industrial activities

Part 3–1 of the FW Act (s 346) also provides that a person must not take adverse action against another person because the other person:

a is or is not, or was or was not, an officer or member of an industrial association;

b engages, or has at any time engaged or proposed to engage, in industrial activity;

c does not engage, or has not at any time engaged or proposed to not engage in industrial activity.

This section provides protection against adverse action taken by reason of a person being an officer or member of an industrial association, or not being an officer or member of an industrial association and taking or not taking industrial action as defined by section 347 of the Act.

Engaging in industrial action is defined by the FW Act to include:

organising or promoting lawful activity for an industrial association; and

representing or advancing the views, claims or interests of an industrial association and taking part in industrial action.

“Adverse action” may include dismissing the employee, injuring the employee, altering the position of employee to the employee’s prejudice or discriminating between the employee and other employees of the employer.

Other protections

Part 3–1 of the FW Act also provides for what were formerly described as “unlawful terminations” (div 4 Workplace Relations Act 1996 (Cth) (“WRA”), now largely repealed and replaced by the FW Act – see Employment contracts, awards and agreements).

Section 351 of the FW Act prohibits discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Like the WRA, the FW Act prevents termination on one or more of those grounds. However, the FW Act extends the protection by prohibiting not just termination, but any “adverse action”.

Section 352 of the FW Act prevents termination of an employee on the grounds of the employee’s temporary absence for illness or injury. That section prohibits only termination on that ground and not any other adverse action.

Compliance and remedies

The FW Act provides a new procedural regime for the commencement of any proceedings alleging a breach of the general protections. Section 365 (read with s 371) provides that a person alleging a contravention of part 3–1 must apply to FWC for it to deal with the dispute (unless an interim injunction is sought). Section 366 provides a time limit of 21 days after any dismissal in breach of the general protections for the making of such an application. Section 369 of the FW Act provides for FWC to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. This certificate is necessary prior to any court application in relation to the alleged breach of the general protections.

Under section 371 of the FW Act, a general protections court application must be made within 14 days after the certificate is issued by FWA. Alternatively, section 369 of the FW Act provides that the parties may consent to the FWC dealing with the general protections application by arbitration. Notification of the parties’ consent to FWC arbitrating the matter must be given to FWC within 14 days of the certificate being issued.

Applications alleging a breach of the general protections may be commenced by industrial associations if the industrial association is affected by the contravention, or the person affected is a member, or entitled to be a member, of the industrial association.

The remedies for a breach of the general protections are set out in part 4–1 of the FW Act. The range of penalties that may be imposed start from $3,300 for an individual to $33,000 for a body corporate (which includes an industrial association). The FW Act also provides that orders may be made by a court on application to it. The court may make orders:

a granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

b an order awarding compensation for loss that a person has suffered because of the contravention; or

c an order for reinstatement of a person.

The orders that FWC may make following a consent arbitration are:

a reinstatement to employment:

b payment of compensation and/or lost remuneration;

c for continuity of service and/or maintaining the person’s continuous service.