The law in relation to general protections under the Fair Work Act 2009 is essentially designed to protect prospective and existing employees against unfair, unlawful and discriminatory treatment.
What is a General Protections Claim and who can make a claim?
Under the Fair Work Act 2009, an employer must not take adverse action against another person, because that other person has a workplace right, exercises a workplace right, or proposes to exercise a workplace right. A person is also protected from adverse action because of their race, colour, sex, age, marital status, pregnancy, religion and other specified grounds.
An employee can make a General Protections Claim when adverse action is taken or threatened against them, because they have a workplace right, exercises such a right or, in some cases, proposes to exercise such a right. In some cases a General Protections Claim may be made by a prospective employee or an independent contractor.
By way of example, a person may make a claim under the Act if he or she is dismissed and can show that that the dismissal was because he or she had exercised a right to take leave due to illness. There must be a connection between the adverse action and the workplace right.
In relation specifically to Western Australia, it is important to note that a General Protections Claim cannot be made by certain employees such as those employed by the State Government and employees employed by entities which are not corporations such as sole traders and partnerships.
A person who claims to have been dismissed in connection with a workplace right must generally file an application with the Fair Work Commission within 21 days after this dismissal took effect. Unlike unfair dismissal claims, there are no qualifying periods or remuneration caps to be eligible to make a General Protections Claim. This means that general protections apply from the start of a person’s engagement at work and, in some cases, before the person is engaged, and apply no matter what the person earns.
What is a Workplace Right?
The term ‘workplace right’ has a broad meaning. Essentially a person has a workplace right if he or she has an entitlement under a workplace law or an award or enterprise agreement and is able to make a complaint or inquiry in relation to their employment.
Accordingly, a workplace right would include an entitlement to annual leave, personal, carer’s or parental leave, redundancy and wages and the right to be represented by a representative of his or her choice during negotiations for a new enterprise agreement. It also includes a right not to be discriminated against on grounds of race, colour, gender etc.
What is Adverse Action?
Adverse action includes dismissing or refusing to employ a person, discriminating against them, or otherwise prejudicing them in their employment e.g. by demoting or suspending them, reducing their overtime or ordinary hours of work or reducing pay.
What must employers ensure?
If an employer intends to take any action against an employee that will have the effect of disadvantaging that person such as dismissal, demotion, reduction of pay or bonus, the employer must ensure that there is no connection between that action and a workplace right that the employee has exercised, or is entitled to exercise.
Why have General Protections Claims been rising?
The number of General Protections Claims made by employees has been rising in recent years. This is because the scope of employees and others who are entitled to make such a claim is greater than for other claims under the Fair Work Act 2009 such as for unfair dismissal. Employees who may not be covered in relation to unfair dismissal, may still have the ability to make a General Protections Claim.
General Protections Claims also come with the added advantage that there is a reverse onus of proof placed upon an employer to show that any adverse action was not taken against an employee because he or she exercised a workplace right.
The remedies available to a claimant who successfully makes a General Protections Claim may include the imposition of a financial penalty on the employer; an order for reinstatement of the claimant; and an order awarding compensation for loss suffered by the claimant because of the contravention by the employer.
With extensive experience in all matters of employment law, Havilah Legal can assist with General Protection Claims.
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