The general protections provision under the Fair Work Act 2009 (FW Act) is commonly known as adverse action. The Fair Work Commission (FWC) provides detailed information about who is covered, what are general protections, how to make an application and the commission process. For the purpose of this article, we are dealing with adverse actions in relation to employees. It should be noted that the provisions cover potential employees.
One of the features of the general protection provisions is that the onus is on the employer to disprove that the alleged action was taken for an unlawful reason.
Adverse action is taken by an employer against an employee if the employer threatens to, organises or takes action by:
- dismissing the employee
- injuring the employee in his or her employment
- refusing to employ a prospective employee
- altering the position of the employee to the employee’s prejudice, or
- discriminating between the employee and other employees of the employer.
The FW Act prohibits a person from taking adverse action against another person because that person:
- has a workplace right
- has or has not used a workplace right
- proposes to, or proposes not to, use a workplace right
- does or does not belong to a trade union
- engages or does not engage in industrial activity
Adverse action does not include:
- action that is authorised by or under the FW Act or any other Commonwealth law
- an employer standing down an employee who is engaged in protected industrial action
- an employer standing down an employee who is employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.
A workplace right is:
- a right under an industrial law or instrument
- the ability to be part of a proceeding (e.g. the ability to lodge or support a grievance)
- the ability to make a complaint or inquiry (under an industrial law or instrument or about employment).
Freedom of Association
Freedom of association is the ability or choice to take part in (or not take part in) industrial activities. For example, becoming a member of a union or organising an activity for a union or its members.
Protection from discrimination is the protection from adverse action being taken against an employee because of a discriminatory reason. For example, sex, relationship status, pregnancy, parental status, religious belief etc.
If an employee believes they are facing adverse action, they can file a General Protections Application with the FWC. Alternatively, they can report the adverse conduct to the Fair Work Ombudsman. If it is determined that adverse action has occurred, employers can be liable for penalties of up to $13,320 as an individual or $66,600 as a corporation. Where a court determines that an employer has contravened the general protections provisions of the FW Act, the court may also order compensation which is not capped.
In order to minimise the risk of adverse action claims employers should consider the following when taking action against employees:
- Test your reasons for making a decision before the decision is actually made
- Be open and clear to employees about the reasons for decisions being made
- Ensure that appropriate documentation in relation to the decision is kept
- Have clear policies and procedures that are reviewed regularly
- When dealing with matters with employees ensure that procedural fairness is followed.
This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact Workplace Resolutions HR directly on (03) 5499 6131 or by email at firstname.lastname@example.org