Protections in the Fair Work Act

1 Feb

Part 3-1 of the FW Act sets out the ‘general protections’ provisions, which are aimed at preventing discrimination and unfair treatment, and encouraging fairness and representation through the recognition of the right to freedom of association.
The main general protections provision is the protection against ‘adverse action’ under section 340 of the FW Act, which prohibits employers from taking adverse action against an employee because the employee either has a workplace right or has exercised, or proposed to exercise, a workplace right.
What is a workplace right?
A ‘workplace right’ is defined by the FW Act as including:
1. the entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (for example, electing to take parental leave);
2. initiating, or participating in, a process or proceeding under a workplace law or workplace instrument (e.g. commencing court proceedings in relation to his or her employment, participating in industrial action or voting for an enterprise agreement); or
3. 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 by an employee in relation to their employment (FW Act s 341(1)), if the person is an employee (e.g. making a complaint about a manager in relation to bullying conduct, refusing to respond to unreasonable out of hours work contact).
What is adverse action?
Adverse action is unfavorable treatment towards a person, and is defined in section 342 of the FW Act to include actions taken against an employee including:
- dismissing the employee;
- injuring the employee in their employment;
- altering the position of the employee to the employee’s prejudice; or
- discriminating between the employee and other employees of the employer.
For more information about adverse actions, see the FWC’s publication, General Protections Benchbook (available at www.fwc.gov.au/benchbook/generalprotections-benchbook).
Part 3-1 of the FW Act (s 346) provides that a person must not take adverse action against another person because the other person:
- is or is not, or was or was not, an officer or member of an industrial association;
- engages in, or has at any time engaged in or proposed to engage in, industrial activity; or
- does not engage in, or has not at any time engaged in, or proposed to not engage in, industrial activity.
Part 3-1 of the FW Act also provides protection against adverse action taken because a person is:
- an officer or member of an industrial association;
- not an officer or member of an industrial association; or
- taking or not taking industrial action as defined by section 347 of the FW Act.
Engaging in industrial action is defined by the FW Act to include:
- organising or promoting lawful activity for an industrial association;
- representing or advancing the views, claims or interests of an industrial association; or
- taking part in industrial action (FW Act s 347).
Prevention of dismissal due to discrimination
The FW Act prohibits discrimination on the grounds of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (FW Act s 351). The FW Act prevents termination of employment or any other adverse action on any of these grounds. Employees may also commence a discrimination claim against an employer under the Equal Opportunity Act 2010 (Vic) or the various Commonwealth human rights and anti-discrimination laws (see Chapter 11.1: Discrimination and human rights).
Prevention of dismissal due to illness or injury
Section 352 of the FW Act prevents the dismissal of an employee on the grounds of the employee’s temporary absence for illness or injury. Only termination is prohibited under this section, and it does not cover any other potential forms of adverse action.
Procedures for applying for a remedy for a breach of the general protections
The FW Act provides a procedural regime for any proceedings alleging a breach of the general protections. Applications alleging a breach of the general protections may be commenced by the person affected by the contravention or by an industrial association (if the industrial association is affected by the contravention, or the person affected is a member, or is entitled to be a member, of the industrial association).
Time limits
Under section 366 of the FW Act, an application for a remedy for a dismissal in breach of the general protections must be made to the FWC within 21 days after the dismissal or such further period as the FWC allows.
Like an extension of time limits with an unfair dismissal application, this time limit can be extended in exceptional circumstances, taking into account the reason for the delay, the action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the parties (FW Act s 366(2)).
The time limit is six years for an application for a remedy regarding a breach of the general protections provisions where no dismissal has occurred.
Fair Work Commission
Under section 365 of the FW Act (read with s 370), a person alleging a contravention of Part 3-1 must first apply to the FWC for it to deal with the dispute before applying to a court (unless an interim injunction is sought).
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it will issue a certificate (FW Act s 368). This certificate must be received before a general protections application can be made to a court.
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 the FWC arbitrating the matter must be given to the FWC within 14 days of the certificate being issued.
Court application
A certificate from the FWC must be received before an application can be made to a court in relation to an alleged breach of the general protections. A general protections court application must be made within 14 days of the FWC issuing the certificate (FW Act s 370).
Remedies
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 range from $19 800 for an individual to $99 000 for a body corporate (which includes an industrial association).
The orders that the FWC may make following an arbitration are:
- reinstatement to employment;
- payment of compensation/lost remuneration; or
- for continuity of service and/or maintaining the person’s continuous service (FW Act s 369).
Under the FW Act, in determining a general protections application, a court may make orders:
- granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
- awarding compensation for loss that a person has suffered because of the contravention; and
- reinstating a person.
What is bullying at work?
A person is bullied at work if, while they are at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers and that behaviour creates a risk to health and safety (FW Act s 789FD(1)).
A person is not bullied at work if the action was reasonable management action carried out in a reasonable manner (FW Act s 789FD(2)).
In the decision of Ms SB [2014] FWC 2104, the FWC considered the application of section 789FD of the FW Act and what constitutes bullying under that section. The FWC determined that:
- ‘unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable;
- a ‘risk to health and safety’ means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ‘risk’ is the exposure to the chance of injury or loss and must also be real and not simply conceptual; and
- all of the requirements of section 789FD(1) of the FW Act must be read together in the assessment of whether a worker has been bullied at work.
Remedies for bullying at work
Since 1 January 2014, the FW Act has provided a scheme for workers to obtain remedies to stop bullying at work.
The scheme applies to a wider range of workers than to people in employment relationships. The scheme also applies to contractors, sub-contractors, outworkers, apprentices, trainees, students on work experience, and volunteers (FW Act s 789FC).
The scheme does not cover all businesses in Victoria. A person seeking to make an application to stop bullying at work should seek advice about whether the relevant business is covered by the scheme (FW Act s 789FD(3)).
When a person makes an application to stop bullying at work, the FWC must commence dealing with the matter within 14 days (FW Act s 789FE(1)).
If the FWC is satisfied that the person has been bullied at work and there is a risk the person will continue to be bullied, the FWC may make any order it considers appropriate to prevent the person being bullied at work (FW Act s 789FF). The FWC cannot make an order for payment of a pecuniary amount.
In situations of bullying at work, consideration should also be given to the relevant rights referred to in ‘General protections’, above.