LexisNexis Practical Guidance®

General protections are the principal statutory guarantees of fair treatment in the workplace and are set out in Pt 3-1 of the Fair Work Act 2009 (FW Act).

These are wide-ranging provisions which provide employees and other persons (ie, prospective employees, contractors and employees of contractors) with broad protection against adverse or unfair treatment taken because of a person’s workplace rights or industrial activities. No qualifying period applies. Unlike unfair dismissal claims, there is no maximum limit applied to the quantum of compensation orders.

These provisions commonly give rise to legal claims against employers and principal contractors. These claims generally rope in “involved persons” such as directors, managers or human resources personnel each of whom may be accessories to the unlawful treatment.

The core requirements of Pt 3-1 are set out in ss 340 and 346.

See An introduction to the general protections.

Both ss 340 and 346 of the FW Act prohibit the taking of ”adverse action" because of a person’s workplace rights or industrial activities.

Conduct that constitutes adverse action is set out in a table in s 342(1) of the FW Act. For example, in the case of an employee, it can include dismissal, injuring an employee in their employment, altering the position of an employee to the employee’s prejudice, or discriminating against an employee relative to other employees of the employer.

The table also makes clear that adverse action can be taken by employers against prospective employees, principals against independent contractors or potential contractors,; employees against employers, independent contractors against principals and industrial associations and officers or members thereof against a person.

See Who can make an adverse action claim?

The FW Act establishes separate processes for dealing with alleged contraventions of Pt 3-1 that involve the dismissal of an employee and those that do not.

For general protection dismissal claims, the person concerned (or union that is entitled to represent their industrial interests) must make an application to the Fair Work Commission (FWC) to deal with the dispute: s 365.

After providing the respondent with an opportunity to respond, the FWC will try to resolve the dispute by conciliation or mediation but it cannot impose an outcome on the parties.

If the FWC is unable to resolve the dispute, then it must issue a certificate to that effect, and the applicant can initiate proceedings in either the Federal Court or the Federal Circuit Court and seek relief as outlined above. Alternatively, the parties may agree for the FWC to arbitrate the dispute: s 369. An arbitrated decision of the FWC is legally binding and may be enforced through the courts.

It is not obligatory to ask the FWC to deal with alleged contraventions that do not involve dismissals, although it is possible to ask it to do so.

See How is an action to enforce a general protection initiated or defended?

Section 340 provides wide-ranging protection against adverse action for persons who exercise, or can exercise, “workplace rights”.

“Workplace rights” for these purposes include that a person:

• •is entitled to the benefit of, or has a role, or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
• •is able to initiate or participate in a process or proceeding under a workplace law or workplace instrument;
• •is able 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; and
• •being an employee, is able to make a complaint or inquiry in relation to their employment.

See What constitutes a workplace right?

The protections against adverse action on grounds of industrial activities are set out in ss 346 and 347.

These protections afford equal protection to persons whether they choose to be members of unions or not. They also provide protection against adverse action on the grounds of engaging or refusal to engage in certain forms of activity, such as organising or promoting unlawful activity for or on behalf of a trade union or participation in (protected or unprotected) industrial action.

See Are there general protections for engaging in industrial activities?

The core protections against adverse action because of workplace rights and industrial activities are complemented by provisions directed against certain other forms of industrial misbehaviour. These include coercion (ss 343, 348 and 355); misrepresentation (ss 345 and 349); inducements in relation to membership or non-membership of industrial associations (s 350); discrimination on a range of protected attributes (s 351); seeking the payment of bargaining fees (s 353); and discrimination in relation to the coverage of industrial instruments (s 354).

See Are there other general protections?

The FW Act also contains protections against sham contracting where an employment relationship is misrepresented to be an independent contracting arrangement.

See What are the general protections against sham contracting?

Breaches of the general protections set out in Pt 3-1 are ”civil penalty provisions". This means that persons who contravene those provisions are liable to the imposition of monetary penalties of up to $63,000 per breach in the case of bodies corporate, and $12,600 for other persons.

In addition to the imposition of monetary penalties, the Federal Court or the Federal Circuit Court can make any order they consider appropriate where they are satisfied that a person has contravened or proposes to contravene Pt 3-1. Such orders can include compensation (with no upper limit); injunctions (interim and permanent); orders of reinstatement; and declarations.

Accessories to the adverse treatment may also be liable for penalties and compensation orders: s 550 of the FW Act.

Court costs are not normally available in Pt 3-1 cases, except where the court is satisfied that a party initiated proceedings ”vexatiously or without reasonable cause", or in other circumstances that are set out in s 570 of the FW Act.

See What remedies are available?

Employers must comply with equal opportunity laws which apply at the federal level and in all states and territories in Australia. Each jurisdiction prohibits discrimination in every aspect of work, including recruitment, terms and conditions of employment, discipline, promotion, transfer, training and termination. Most equal opportunity legislation covers both persons engaged under a contract of service (employees) and persons engaged under a contract for services (independent contractors), although not necessarily to the same extent.

Discrimination classically involves treating someone unfavourably because of an attribute, ie, their age, race or sexuality, though that discrimination can also arise indirectly from what appears to be equal treatment. For example, a requirement which applies equally to a group of people may have a disproportionate effect on persons within that group who have an attribute — eg, a requirement to attend 8:00 AM meetings in the workplace may have a more negative effect on employees who have caring responsibilities.

Not all forms of discrimination are against the law. Discrimination will only be unlawful if it is based on a proscribed attribute set out in Federal or State equal opportunity legislation. There are also some limited exemptions to the prohibition on unlawful discrimination contained in each Act.

See An introduction to equal opportunity laws.

Only certain attributes are protected and there are differences and overlaps under federal, state and territory equal opportunity laws.

If there is an inconsistency between federal and state/territory equal opportunity laws, the federal laws will prevail.

See What are the protected attributes?

Federal, state and territory equal opportunity statutes set out the relevant process to be followed when a complaint of unlawful discrimination (or harassment) is made in that jurisdiction. The complaint-handling and dispute resolution provisions of these statutes vary, but the following features are common to all jurisdictions:

• •lodgment of a complaint with an equal opportunity commission (or similar body);
• •investigation of the complaint by the equal opportunity commission (or similar body);
• •unless the complaint is declined, attempted resolution of the complaint by conciliation in the equal opportunity commission (or similar body); and
• •if conciliation is inappropriate or does not resolve the complaint, the complaint may be referred to an equal opportunity tribunal, or a court, for hearing and determination.

See What remedies and dispute resolution measures are available to resolve equal opportunity matters?

Federal, state and territory equal opportunity statutes contain specific provisions prohibiting discrimination in relation to advertising and the offering of employment. These provisions also extend to prohibiting discrimination in regard to workplace policies, pre-employment questions, interviews, and application forms and other forms (such as medical forms and criminal records check forms) used in recruitment and pre-employment processes.

See What legislation exists to protect against discrimination during the recruitment process?

Performance management of employees who are ill or injured is a sensitive issue in both legal and practical terms, especially if performance management processes leads to an adverse outcome such as termination of employment.

It is important to remember that ill or injured employees can be performance managed and that in appropriate circumstances it may be possible to lawfully terminate employment.

Section 352 of the Fair Work Act 2009 (Cth) (FW Act) limits the capacity of an employer to lawfully terminate employment in circumstances where an employee is on paid personal/carer’s leave. Performance management must also navigate workers compensation, anti-discrimination, unfair dismissal, unlawful termination, general protections and work health and safety laws obligations.

See What are the legal risks associated with managing employee injury/illness?

”Performance management" can be the day-to-day supervision of an employee’s work, with regular, informal communications about work expectations and delivery of work, coaching and providing informal feedback on performance.

Performance management can also refer to a formal process through which an employee’s performance is reviewed and monitored, usually as a result of the identification of some shortcoming in the employee’s work performance. These processes would commonly include putting in place specific performance targets and monitoring the individual’s progress towards attainment of those targets. Failure to achieve performance targets may lead to disciplinary action up to and including termination of employment.

Effective performance management is an important part of the operation of a business. If it is mismanaged, it may give rise to significant legal exposures for employers both at common law and (especially) under statute.

These statutory exposures can include claims under unfair dismissal laws, alleged breaches of the general protections in Pt 3-1 of the Fair Work Act 2009 (FW Act) and claims under federal and state anti-discrimination legislation.

Part 3-1 of the FW Act and most anti-discrimination legislation contain ”reverse onus" provisions. This means that once an applicant (employee) establishes adverse treatment it is then for the respondent (employer) to prove that that the adverse treatment did not take place because the applicant had exercised or proposed to exercise a workplace right or because an applicant had a workplace right.

This means it is important that employers have appropriate performance management policies and procedures. Just as important is adhering to policies in practice as failing to do so may have significant adverse consequences in any subsequent legal proceedings.

Effective performance management of employees who are ill or injured must start from a recognition that all employees have entitlements to take paid personal or sick leave under the FW Act. It is quite likely that they will also have entitlements under one or more of an award, enterprise agreement, contract of employment or employer policy. Where the illness or injury is work-related, then the employee may well be entitled to periodic and/or lump sum payments, and a measure of job protection, under workers’ compensation legislation as well.

As indicated, this does not mean that it is not possible lawfully to performance manage employees who are ill or injured, and to terminate their employment if necessary. However, it does mean that any performance management program must take proper account of the fact that the employee is ill or injured, and if employment is to be terminated it is important to take proper account of the requirements of s 352 of the FW Act and of relevant anti-discrimination legislation.

See What are the legal risks associated with performance management?

It is important to encourage all persons to be engaged in work health and safety activities and to properly exercise roles, powers and functions provided for in the Model Work Health and Safety Act (Model Act).

To this end the Model Work Health and Safety Act, in Pt 6 (ss 104 to 115), addresses inappropriate conduct that could deter people from being involved in safety activities or deter them from exercising their roles, powers and functions under the Act.

Part 6 of the Model Act sets up a scheme that prohibits discriminatory, coercive and misleading conduct in relation to work health and safety matters. The prohibition is aimed at allowing workers, prospective workers and others to perform legitimate safety-related functions or activities and to raise health and safety issues or concerns under the Model Act without fear of reprisal. These provisions send a strong signal that discrimination and other forms of coercion that may deter people from being involved in and committed to work health and safety issues are unlawful and will not be tolerated. Penalties and other remedies are provided. Machinery provisions deal with how criminal and civil proceedings will operate and how the interaction between the two forms of action will be managed.

See Introduction to discriminatory, coercive and misleading conduct.

This Guidance Note explains what constitutes “discriminatory conduct”, and when it will be unlawful.

Briefly stated, a person will be considered to have engaged in discriminatory conduct if the person:

• •dismisses a worker;
• •terminates a contract for services with a worker;
• •puts a worker to his or her detriment in the engagement of the worker;
• •alters the position of the worker to the worker’s detriment;
• •refuses or fails to offer to engage a prospective worker;
• •treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement;
• •terminates a commercial arrangement with another person;
• •refuses or fails to enter into a commercial arrangement with another person; or
• •organises to take or threatens to organise or take any of the above activities.

In many cases, there may be a legitimate reason for such conduct. Discriminatory conduct will only be unlawful if it is carried out for a prohibited reason. Prohibited reasons for engaging in discriminatory conduct include that the person who is the subject of the discriminatory conduct:

• •is involved in, has been involved in, or intends to be involved in work health and safety representation at the workplace by being a health and safety representative or a member of a health and safety committee or exercising a power or function in that capacity;
• •undertakes, has undertaken, or proposes to undertake another role under the Act;
• •exercises or refrains from exercising or exercises in a particular way, a power or function under the Act;
• •assists, has assisted, or proposes to assist a person exercising a power or performing a function under the Act;
• •gives, has given, or intends to give information to a person exercising a power or performing a function under the Act;
• •raises, has raised, or proposes to raise an issue or concern about work health and safety with specified other persons;
• •is involved in, has been involved in, or proposes to be involved in resolving a work health and safety issue under the Act; or
• •is taking action, has taken action, or proposes to take action to seek compliance with a duty or obligation under the Act.

Instructing, inducing, encouraging, authorising or assisting another person to engage in discriminatory conduct for a prohibited reason is also prohibited.

See Discriminatory conduct for prohibited reasons.

In addition to prohibiting discriminatory conduct in relation to work health and safety matters, Part 6 of the Model Act also makes it unlawful to:

• •coerce or induce a person to exercise or not exercise a power, function or role under the Act; and
• •knowingly or recklessly misrepresent a person’s rights, obligations, ability to participate in processes or proceedings or make complaints or inquiries under the Act.

This Guidance Note explains what types of content will amount to coercion, inducement and misrepresentation.

See Prohibition of coercion and misleading conduct.

Part 6 of the Model Act provides for both criminal and civil sanctions in relation to discriminatory conduct.

If the prohibited reason for engaging in discriminatory conduct is the predominant reason, prosecution and criminal penalties may follow. If the prohibited reason is the substantial reason, civil proceedings may arise. There are several other important differences between criminal and civil proceedings for discriminatory conduct, such as who can bring proceedings, the applicable standard of proof and the defences available, which are explained in this Guidance Note.

Part 6 of the Model Act also makes provision for criminal and civil penalties in relation to coercion and criminal penalties in relation to misleading conduct.

See Criminal and civil proceedings for discriminatory, coercive or misleading conduct.

Part 6–4B of the Fair Work Act 2009 (Cth) (FW Act) empowers the Fair Work Commission (FWC) to make orders to stop workplace bullying.

Bullying at work occurs where a worker is subjected to repeated unreasonable behaviour by an individual or group of individuals that creates a risk to health and safety: s 789FD(1). The definition of bullying does not include reasonable management action carried out in reasonable manner: s 789FD(2).

See What constitutes bullying at work?

An application for stop bullying orders may be made by a worker in a constitutionally covered business: s 789FC.

See Who can apply for an order to stop bullying?

The FWC has discretion to deal with an application as it considers appropriate, including by mediation, conference or hearing. The applicant and alleged bully, as well as the principal(s) or employer(s) of the applicant and alleged bully will be given an opportunity to be heard and put forward their case.

See How are anti-bullying applications resolved?

The FWC may grant relief on an anti-bullying application where it is satisfied that (s 789FF):

• •the worker has been bullied at work by an individual or a group of individuals; and
• •there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.

The FWC can make “any order it considers appropriate” to prevent the worker from being bullied, apart from an order requiring payment of a pecuniary amount: s 789FF(1). The focus of the FWC’s anti-bullying jurisdiction is on preventing future bullying and the restoration of respectful and productive working relationships, not on compensating the worker or punishing the perpetrator per se.

See What can the FWC do to stop bullying?

There are other sources of potential liability for employers that fail to provide a working environment that is free of bullying and harassment, including under:

• •work, health and safety legislation;
• •the law of negligence;
• •criminal law; and
• •discrimination laws.

See What are the legal risks associated with workplace bullying and harassment?

The common law provides limited protections for employees who disclose illegal, immoral or illegitimate practices on the part of their employer. Indeed, an employee’s duty of fidelity and good faith can constitute a positive disincentive to whistle blowing, given an employee who discloses confidential information may be liable to disciplinary action, including dismissal. A whistle blowing employee may also be subject to legal proceedings for breach of common law or equitable duties or for defamation.

The duty of fidelity and good faith is subject to an exception where the disclosure relates to an ”iniquity" on the part of the employer. However, this may be of limited value to an employee who has lost his or her job and who is unable to recover substantial damages for breach of contract.

On the other hand, an employer’s failure to protect whistleblowers from victimisation can sometimes enable employees to recover substantial damages where they can show that such failure constituted a breach of the employer's common law duty of care, or that the employer is liable for the actions of its employees.

See How are whistleblowers protected under the common law?

Whistleblower protection for persons disclosing concerns of misconduct or of an “improper state of affairs or circumstances” concerning private sector entities is set out in the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth).

Protection for whistleblowers may also be available under other legislation, such as discrimination, consumer and work health and safety legislation.

Where the concern relates to matters of public interest (eg, a private sector entity providing a public service) there may be some cross-over with legislation dealing with disclosures about the public sector.

See Whistleblowers — raising concerns about the private sector

An extensive range of legislative protections exist for whistleblowers in Australia who raise concerns about the public sector and matters of public interest.

At the federal level, and in each state and territory, there is specific legislation protecting certain persons who disclose information that relates to improper conduct or maladministration by public officers and public bodies. In some jurisdictions, legislation extends to disclosures about conduct in the private sector, eg, where the disclosure relates to illegality, a risk to public safety or to the environment or where the conduct relates to private sector entities engaged to provide services to a public body. Disclosures under made under this legislation are “public interest disclosures”.

Other laws, such as corporations, taxation, employment, discrimination, work health and safety and consumer legislation also provide a degree of protection to whistleblowers in both the public and private sectors.

See Whistleblowers — raising concerns about the public sector.

According to the United Nations, there are at least 21 million modern slaves worldwide. This includes people in forced or compulsory labour, involuntary servitude, human trafficking and child labour.

Legislation has been instituted in a number of jurisdictions that either addresses modern slavery directly or incorporates modern slavery considerations in the corporate management of human rights issues generally.

Legislation was introduced in the Commonwealth and in NSW in 2018.

See What is modern slavery?

The Modern Slavery Bill 2018 (Cth) (the Bill) was introduced to the Federal Parliament on 28 June 2018. It has passed through the Lower House and the Modern Slavery Act 2018 (Cth) (the Commonwealth Modern Slavery Act) is expected to be passed by the end of 2018.

The Bill provides that all entities subject to the Commonwealth Modern Slavery Act must prepare a modern slavery statement. Related entities may submit a joint modern slavery statement under s 14 of the Bill.

See Modern Slavery Act 2018 (Cth).

The Modern Slavery Act 2018 (NSW) was passed on 27 June 2018, and provides that all entities subject to it will be required to prepare a modern slavery statement. It currently provides high-level guidance on what a statement should include, with more detailed guidance to be provided in subsequent regulation.

See Modern Slavery Act 2018 (NSW).

Employee entitlements come from various sources, including industrial instruments, legislation, contracts of employment and policies.

See What entitlements do employees get?

Unpaid or underpaid employee entitlements commonly present in four typical scenarios:

• •failure to pay award entitlements;
• •the misclassification of an ongoing employee as a casual employee;
• •the misclassification of an employee as a contractor; or
• •an underpayment which arises as a result of an annualised salary arrangement.

See Typical scenarios leading to underpayments.

The provisions setting out employee entitlements in the Fair Work Act 2009 (Cth) are civil penalty provisions. Primary liability lies with the employer. However, persons involved in the contravention can be liable as accessories (including franchisors or holding companies). Where the liability relates to vulnerable persons and/or is particularly serious, penalties can be significantly higher.

The Fair Work Ombudsman (FWO), employer and employee representatives, employers and employees have standing to make an application for employee entitlements, which can be heard in the Federal Court, Federal Circuit Court and relevant State or Territory courts. Disputes under an award or enterprise agreement can be heard by the Fair Work Commission. Class actions to recoup employee entitlements for groups of employees are also becoming more prevalent.

See Process of enforcing entitlements under the Fair Work Act 2009 (Cth) — penalties, standing and jurisdiction, Class actions, The role of the Fair Work Ombudsman (FWO) and Actions by individuals or employee representatives.

There is ongoing debate across jurisdictions about whether serious underpayment contraventions should be classed as criminal contraventions or as commonly referred to “wage theft”.

See Current developments in this area.