An introduction to the general protections

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.

Who can make an adverse action claim?

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?

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

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?

What constitutes a workplace right?

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?

Are there general protections for engaging in industrial activities?

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?

Are there other general protections?

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?

What are the general protections against sham contracting?

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?

What remedies are available?

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?