What are the general protections?

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Historically protections from unlawful actions being taken in or in relation to the workplace have been scattered throughout legislation. The introduction of the Fair Work Act 2009 saw these provisions collected together in a single Part.

The principal protections have been divided into:

• protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements)
• engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association)[1]
• other protections including protection from discrimination, and
• Sham arrangements.

Certain persons, including employers, principals, employees and industrial associations; are prohibited from taking adverse action against certain other persons because the other person has, or exercises, a workplace right, or engages in industrial activity. Adverse action includes dismissal of an employee but also includes a range of other action such as prejudicing an employee or independent contractor and organizing industrial action against another person. Coercion and misrepresentation in relation to workplace rights and industrial activities are also prohibited.

Role of general protections

The general protections have been introduced to:

• protect workplace rights
• protect freedom of association
• provide protection from workplace discrimination, and
• Provide effective relief for persons who have been discriminated against, victimized, or have experienced other unfair treatment.

The Fair Work Act 2009 (Cth) ('the Act') implements significant changes to unfair dismissal laws and the way in which claims will be made and processed. The relevant parts of the Act entered into force on 1 July 2009 as part of the Federal Government's objective to straighten out the controversial restrictions to unfair dismissal set by the previous Government through Work Choices, and to create a more efficient and accessible dispute resolution mechanism for employees and employers.

 

All unfair dismissal claims will be managed by Fair Work Australia ('FWA'), the new and independent workplace relations tribunal created under the Act, as part of its assumed responsibility for all industrial relations matters and dispute resolution. The Australian Industrial Relations Commission will therefore stop operating on 31 December 2009, once FWA is established and old claims have been resolved.

 

The Act applies to all employees in Victoria, ACT and the Northern Territory. It has a restricted application in other states, where it only affects those employees who are;

 

• employed by a constitutional corporation;
• employed by the Commonwealth authority; or
• a waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce.

Accordingly, employees in NSW who do not fit within the above categories will continue to be governed by NSW State legislation and workplace awards.

Industrial activities with General Protections

 

All employers, employees and independent contractors are free to become, or not to become, members of an industrial association, such as a trade union or employer association. In addition, all employers, employees and independent contractors are entitled to engage or not engage in what are called ‘industrial activities’.

These activities are defined in the FW Act. They include various forms of lawful participation in an industrial association (such as a trade union) and its activities, including organising or promoting lawful activities for or on its behalf, representing its views, and seeking to be represented under general protections Further, it covers a person being victimised for refusing to be involved in unlawful activity organised or promoted by an industrial association or industrial action.

How can I seek help for a general protections contravention?

Fight for your rights under the law Unfair Dismissals Australia is owned and operated by AWDR Australia’s leading workplace representatives. We specialize in the resolution of workplace disputes and unfair dismissals. Our services also include workplace bullying, sexual harassment and discrimination. If you have an enquiry please take the time to get in touch with us here :  https://unfairdismissalsaustralia.com.au/casual-employee-rights/