What are general protections for employees?

What are general protections for employees?

Overview

In the past, the illegal actions that took place with regard to the workplace were dispersed across the legislation. However, when the Fair Work Act 2009 was passed, these provisions were consolidated in a single section.

 

Principal protections types

The principle protections are classified into the following categories:

 

  1. Workplace rights protections (protections that are roughly defined as employment entitlements and the freedom to exercise and enforce those entitlements)
  2. Industrial activities protections (protections that incorporate the freedom of choice to being or not being a member or officer in an industrial association and to be involved in legal activities, including the ones of an industrial association)
  3. Other protections that include protection from discrimination
  4. Sham arrangements protections

 

Certain individuals, such as employers, principals, employees and industrial associations are forbidden from taking adverse action against others just because they either have or exercise a workplace right, or engage in industrial activity. Dismissal of an employee is just one among the many kinds of adverse actions, such as discriminating against an employee or independent contractor and executing industrial action against another individual. Coercion, as well as misrepresentation in the workplace and in connection to industrial activity, are likewise illegal.

 

What protections do employers and employees working in the private sector have?

 

A person or an industrial organisation is prohibited from taking any adverse action against another person in respect to workplace rights, industrial activity, or discrimination under the FWA.

 

The FWA also includes a number of ancillary protections for both employers and employees, including discrimination protection, temporary absence protection, payment of specific fees, coercion, undue influence protection, misrepresentation, inducement protection, and sham arrangements protection.

 

What does adverse action imply?

The term adverse action incorporates a lot of parameters. The employer as well as the employee have the right to take action against one another. Adverse action constitutes these scenarios:

 

  1. An employer terminating, harming, or changing an employee’s position due to prejudice, or discriminating against them.
  2. A potential employer who either rejects a candidate or discriminates against them with respect to the employment terms and conditions.
  3. A principal who terminates an independent contractor’s contract by harming them, changing their position as per the contractor’s bias or prejudice, refusing to use or agree to make use of their services, or refusing to provide or supply either goods or services, or both to them.
  4. A principal who proposes to enter into a service contract with an independent contractor but then later declines to engage them, discriminating against them concerning the terms and conditions of employment offered, refusing to use or agree to use their services, or refusing to supply or agree to supply goods or services to them.
  5. An employee who quits their job or takes industrial action against the employer.
  6. An independent contractor who refuses to work on a contractual basis or executes industrial action against the party they have a binding agreement with.
  7. An industrial association, such as a union or an official or member of an industrial association, conducting or organising industrial action against a person that has the effect of prejudicing the person’s job or potential employment, directly or indirectly.
  8. An industrial association that presses a penalty or sanction on a member in any way.

 

What protections can the employees avail for their rights in the workplace?

Protection against adverse action

A person cannot take adverse action against another individual for any reason protected by the FWA, including exercising a workplace right. There are several instances that this may apply to, including the following:

 

  1. Being fired for taking sick leave
  2. Submitting a harassment complaint at the workplace
  3. Raising concerns about workplace health and safety

Protection against coercion

An individual should not coerce someone else into exercising or refusing to exercise a workplace right.

Protection against improper influence or pressure

It is illegal to use excessive influence or pressure on any employee in order to:

 

  1. Accept a guarantee of annual earnings or agree or not agree to a deduction of work related payments
  2. Form or break either an agreement or arrangement under the National Employment Standards (NES).
  3. Make or not make an agreement or arrangement with respect to a term of a modern award or an enterprise agreement
  4. Agree to or terminate any kind of flexibility arrangement of the employee
  5. Accept or not accept a guarantee of annual earnings

Protection against misrepresentation

An individual is forbidden to make a representation that is false or misleading with regard to another person’s employment rights or the exercise of a workplace right, whether done intentionally or carelessly.

What steps can an employee implement when they feel a general protection clause has been violated?

 

If a person’s rights have been violated, they can file a complaint either with the Fair Work Commission (FWC) or the Federal Court, or both. They can also file a general protections claim with the Federal Circuit Court. Depending on whether the individual has been fired, different periods and procedures apply.

 

General protections claim: What is it?

According to the Fair Work Act 2009, a person shall not take adverse action against another person because the other person either has a workplace right or exercises a workplace right, or they propose to exercise a workplace right.

 

A general protections issue arises when adverse action is taken or threatened to be taken because a person either has one of these rights or exercises that right, or, in certain situations, seeks to exercise that right.

 

An employee who alleges he or she was fired for exercising a workplace right must submit a General Protections Claim within a period of 21 days of the termination.

 

Conclusion

We hope this information could be of some help to you when it comes to general protections for employees. If you need further help for general protections claims in Australia contact us.