28 Jan General Protections: Overview
The Fair Work Act 2009 provides a range of general protections for employees in relation to unfair treatment in the workplace. The general protections include:
- Discrimination: An employer must not take adverse action against an employee or prospective employee because of their: 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.
- An employer must not dismiss an employee because they are temporarily absent from work because of illness or injury. This generally means an employee cannot be dismissed for being absent because of illness or injury for less than 3 months or less than 3 months in a 12 month period. This is subject to compliance with notice and evidentiary requirements;
- A person must not take adverse action against another person because they have a workplace right or because they exercise a workplace right. A workplace right can include an entitlement under the NES, an award or enterprise agreement. Employees are also protected from adverse action if they are involved in a complaint or proceeding about their employment rights;
- An employer must not dismiss or threaten to dismiss an employee in order to engage them as an independent contractor (paid through an ABN) and must not represent to a person that they are an independent contractor if the employer knows or should have known that the person is really an employee;
- A person must not coerce another person into exercising a workplace right in a particular way. For example, an employer cannot coerce an employee into voting in favour of an enterprise agreement;
- An employer must not exert undue influence or undue pressure on an employee to enter into an individual agreement under an award, enterprise agreement or the NES;
- A person must not knowingly or recklessly make misrepresentations about the workplace rights of another person. For example, an employer must not tell an employee they have no entitlement to annual leave if they are aware that this is incorrect or should be aware this is incorrect;
- There are a range of protections for employees who engage in industrial activity. This generally involves performing functions for a trade union or supporting the actions of a trade union.
Claims about breaches of these provisions are generally initially filed in the Fair Work Commission. The Commission will attempt to resolve the matter through conciliation. If conciliation does not resolve the matter, the claim can be prosecuted in the Federal Court or the Federal Circuit Court. The Court has a broad discretion to make any orders it considers appropriate and can currently impose fines of up to $54,000 against a corporation per contravention.
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