What are general protections?
Every Australian employer and worker covered by the National Employment Standard is protected under the Fair Work Act 2009 against adverse action in the workplace. These general protections ensure that workplace rights and the exercise of workplace rights (or choice to not exercise workplace rights) are preserved. also protects against adverse action from an employee engaging in industrial activities, and protects employees from discrimination and sham arrangements.
Under section 340 of the Fair Work Act 2009, an employer or employee is prohibited from taking adverse action against another person in the workplace because the other person has a workplace right, exercises (or does not exercise) the workplace right, or proposes to exercise (or not to exercise) that workplace right.
What can we help with?
If your general protection claim relates to a dismissal, you must apply to the FWC within 21 days from the date the dismissal took effect.
Conciliation and arbitration offer cost-effective, confidential avenues of resolving disputes compared to court proceedings. IR Advocates can help you pursue your general protections application through the conciliation or arbitration process in the Fair Work Commission. We will assist you in preparing your application and submissions, and represent you at Fair Work Commission conciliation hearings to ensure the best possible chance that your dispute is resolved and you receive the outcome you deserve. The outcome coud be compensation or reinstatement.
What Workplace Rights are protected under the Fair Work Act?
There are several “workplace rights” that employers and employees enjoy in the workplace. Within the context of a workplace, workplace rights include any of the following:
- Being entitled to a benefit or having a role or responsibility under a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body.
- Being to initiate or participate in a process or proceedings under a workplace law or workplace instrument.
- Having the capacity under workplace law to make a complaint or inquiry about compliance with a workplace law or workplace instrument or in relation to a person’s employment.
It is a breach of the Fair Work Act 2009 for an employer to take adverse action against any of the abovementioned workplace rights.
What does “taking adverse action” against an employee look like?
An employer cannot take adverse action against an employee if he or she exercises (or does not exercise) a workplace right. Adverse action includes:
- Dismissing the employee;
- Injuring the employee in his or her employment;
- Altering the position of the employee to the employee’s prejudice; or
- Discriminating between that employee and other employees.
Additionally, an employer must not take, or threaten to take action with the intent of coercing an employee from exercising or not exercising a workplace right.
Case study – Jessica experiences adverse action in the workplace
Jessica works as a part time waiter in a cafe and is employed under the Restaurant Industry Award 2020. She believes that she is being underpaid and exercises her workplace right by querying her wage payment with her employer.
About a week after that conversation, the employer changes Jessica’s roster to remove her from all penalty shifts and offers them to Robert because Robert “just keeps his head down and does not question the employer on how it runs its business”. The change to Jessica’s roster is adverse action and it was taken as a result of Jessica exercising her workplace right. Such conduct is prohibited by the Fair Work Act 2009.