Fair Work Commission General Protection Provisions
The general protections provisions under the Fair Work Act 2009 (Cth) (the Act) afford certain persons protection from prohibited conduct which would otherwise place an aggrieved person in a disadvantaged position.
Breaches of these provisions primarily go before the Fair Work Commission and can resolve early on at a conciliation conference or may proceed all the way to a hearing. The Fair Work Commission provides a cheaper and quicker mechanism for parties to resolve their dispute which may relate to a dismissal or a non-dismissal issue.
Alternatively, and in some rare cases, it may be appropriate for a breach of a general protection provision to be brought before the Court. The caveat in doing so is that proceedings before the Court may be protracted and the legal fees associated with the proceeding should be carefully considered.
In any case, as general protection provisions can be complex and individual circumstances may vary, it is important that you obtain your own independent legal advice to ascertain the best course of action for your matter.
This article is not legal advice and is merely a general and simplified overview of the general protection provisions under the Act.
We offer a 20 minute free initial consultation to discuss your matter with one of our skilled and competent litigation lawyers.
Who is Protected Under the Act?
The Act contemplates the general protections provisions to apply to a variety of persons, including:
1. Employees and Prospective Employees;
2. Employers and Prospective Employers;
3. Independent Contractors and Prospective Independent Contractors;
4. A person ( the principal) who has entered into a contract for services with an independent contractor and a person who proposes to enter into a contract for services with an independent contractor
Employers and Employees are given their ordinary meaning for the purposes of the general protections provisions under the Act. An employer is a person who engages another to work under a contract of employment. Conversely, an employee is a person who works under a contract of employment for an employer.
The definition of an independent contractor is technical and is based on many factors, including hours of work, superannuation, tax and method of receiving payment. While one factor alone is not conclusive of a person being an independent contractor, a fundamental aspect of an independent contractor is that they are providing a service to the principal while working in their own business.
A prospective person refers to future, potential or to an expected person who is likely to be engaged to perform work by another person. This means that a general protection may be owed to a employee who is likely to be considered by the employer for the work that they are applying for.
As discussed below, some of the general protections provisions under the Act refer to ‘adverse action’ in relation to a person and another person (e.g. an employee and employer).
Adverse action of an employer against an employee may include:
- dismissing the employee;
- injuring the employee in the course of their employment;
- prejudicing the employee by altering their employment; or
- discriminating between employees that are employed by the employer.
Adverse action of an employee against an employer may include:
- ceasing work in the service of the employer;
- taking industrial action against the employer.
Adverse action of a principal against an independent contractor may include:
- terminating the contract;
- prejudicing the independent contractor’s position;
- refusing to make use of, or agree to make use of, services offered by the independent contractor;
- refusing supply, or agree to supply, goods or services to the independent contractor.
Adverse action of an independent contractor against a principal may include:
- ceasing work under the contract; or
- taking industrial action against the principal.
Generally, the Act prohibits conduct which would amount to adverse action, although this is subject exceptions.
What Are the General Protections under the Act?
There are various general protection provisions under the Act, and this article will focus on the most common general protections.
The protections can be categorised as follows:
- Protections relating to workplace rights;
- Freedom of Association;
- Other protections; and
- Sham arrangements.
In short, for a workplace right to exist it can only exist according to a workplace law or a workplace instrument that governs the relationships between employees and employers. Under the Act, a person must not take adverse action against another person because the other person:
- Has a workplace right;
- Has or has not exercised a workplace right; or
- Proposes to or proposes not to exercise a workplace right.
For example a workplace right could include but is not limited to:
- Occupational health and safety matters;
- Worker’s compensation;
- Modern award or enterprise agreement;
- Making a complaint or inquiry about a person’s employment.
In addition, a person has further workplace rights and protection in relation to being free from:
- Undue influence or pressure; or
Freedom of Association
The Act provides protection for a person’s right to engage or not to engage in certain industrial activities or associations. Under the Act, a person must not take adverse action against another person because the other person:
- Is, is not, was, or was not an officer or member of an industrial association; or
- Engages or does not engage in an industrial activity within the meaning of the Act.
In addition, a person has further freedom of association protections in relation to being free from:
- Misrepresentations; or
- Inducements (membership action)
Other Protections – Discrimination
An employer must not take adverse action against a person who is an employee of the employer because of:
- Sexual orientation;
- Physical or mental disability;
- Marital status;
- Family or Carer’s Responsibilities;
- Political opinion;
- Nation extraction; or
- Social origin.
The list above is not exhaustive. There may be technical differences when compared to anti-discrimination legislation in seeking this protection order as the overarching theme of the Act in relation to general protection orders pertains to adverse action (and not the discrimination itself as such).
For example, if an employer makes a conscious decision to discriminate between people because one or more of the reasons set out above, an employee may be entitled to seek this general protection order, however this is subject to exceptions under the Act.
This protection does protect adverse action that is:
- Not unlawful under any anti-discrimination law in force in the place where the action is taken;
- Taken because of the inherent requirements of the particular position concerned; or
- Taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
1. In good faith; and
2.To avoid injury to the religious susceptibilities of adherents of that religion or creed.
Other Protections – Temporary Absence
An employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury as prescribed under the Fair Work Regulation 2009 (Cth).
In short, this protection may only apply if the employee satisfies at least one of the ‘substantiation requirements’ with respect to:
1.The employee providing a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances; or
2. In accordance with the terms of a workplace instrument, the employee notifies the employer of an absence from work and substantiates the reason for the absence; or
3. If the employer requires the employee to give evidence to the employer that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee.
Sham Arrangements – Misrepresenting Employment as Independent Contractor
An employer must not make representations to a person that they offering a position as an independent contractor (i.e. contract for services) when the position and the relationship is actually one of an employee and employer (i.e. contract of employment).
For example, an employer must not direct a person to get an ABN or register themselves as their own business before commencing working for the employer as an independent contractor.
Although, this protection is subject to exceptions and this protection does not apply if the employer proves that, when the representation was made, the employer:
1. Did not know; and
2. Was not reckless as to whether the contract was a contract of employment rather than a contract for services.
Sham Arrangements – Dismissing to Engage As Independent Contractor
An employer must not dismiss, or threaten to dismiss, an individual who:
1.Is an employee of the employer; and
2.Performs particular work for the employer in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.
For example, an employer cannot dismiss an employee with the intent to re-engage the employee as an independent contractor because it may be cheaper for the employer to do so.
Sham Arrangements – Misrepresentation to Engage As Independent Contractor
An employer must not make a statement to an employee, whether currently or previously employed, that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.
In short, an employer cannot knowingly make a false statement to an employee which would persuade or influence an employee to become an independent contractor to perform the same work.
Rebutting the Presumption as to Reason or Intent
Under the Act there is a presumption that if it is alleged that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless proven otherwise.
For example, in the context of an employer and employee, if it is alleged that an employer dismissed an employee because the employee exercised a workplace right, once it is established that the dismissal occurred and the employee exercised a workplace right, it is presumed that the dismissal occurred because the employee exercised a workplace right.
The employer must prove otherwise to rebut his presumption.
The general protection provisions under the Act afford a wide variety of protections to different persons in certain circumstances, subject to some exceptions.
The Fair Work Commission provide a cheaper and quicker process if a general protection provision is breached under the Act. Although, in some cases it may be necessary or appropriate to bring the breach of a general protections provision before the Court.
As aforementioned, in any case, as general protection provisions can be complex and individual circumstances may vary, it is important that you obtain your own independent legal advice to ascertain the best course of action for your matter.
This article is not legal advice and is merely a general and simplistic overview of the general protection provisions under the Act.