What are the general protections?

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 organising industrial action against another person. Coercion and misrepresentation in relation to workplace rights and industrial activities are also prohibited.[2]

Civil remedy provisions

All of the general protections prohibitions are civil remedy provisions.[3]

A civil remedy provision is a provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the alleged wrong-doer, or any other order the Court considers appropriate such as an injunction.

Involvement in contravention treated in same way as actual contravention

A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.[4]

A person is involved in a contravention of a civil remedy provision if, and only if, the person:

• has aided, abetted, counselled or procured the contravention
• has induced the contravention, whether by threats or promises or otherwise
• has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention, or
• has conspired with others to effect the contravention.[5]

Role of general protections

See Fair Work Act s.336

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, victimised, or have experienced other unfair treatment.

References

[1] Explanatory Memorandum to Fair Work Bill 2008 [1338].

[2] Explanatory Memorandum to Fair Work Bill 2008 [1339].

[3] Explanatory Memorandum to Fair Work Bill 2008 [1341].

[4] Fair Work Act s.550(1).

[5] Fair Work Act s.550(2).