General Protections

Fair Work Act 2009

The Fair Work Act 2009 provides protections of certain rights, including:

  • workplace rights
  • the right to engage in industrial activities
  • the right to be free from unlawful discrimination
  • the right to be free from undue influence or pressure in negotiating individual arrangements.
These rights are protected from certain unlawful actions, including (but not limited to):

  • adverse action
  • coercion
  • misrepresentations
  • undue influence or pressure in relation to:
    • Individual flexibility arrangements under modern awards and enterprise agreements
  • guarantees of annual earnings
  • deductions from wages.

Rights that are protected under general protections

Workplace Rights

A workplace right includes:

  • an entitlement to a benefit established under a workplace law or instrument (including awards, rights to parental leave, etc.);
  • a right to initiate or participate in a process established under a workplace laws or instrument (such as protected industrial action); and
  • a right to make a complaint or enquiry about employment (which can be to an authority or  your employer)

Industrial Activities

All employees 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 ‘industrial activities’.

Other Protections: Temporary absence due to illness or injury

An employer must not dismiss an employee because they have been temporarily absent from work because of illness or injury if they have a doctor’s certificate and they are on paid sick leave or they have had less than three months unpaid sick leave in the last year.

Adverse Action

Adverse action is action that is unlawful if it is taken by an employer for particular reasons.

The Fair Work Act 2009 defines a number of actions as adverse actions. Adverse action taken by a person includes doing, threatening, or organising any of the following:

  • dismissing the employee
  • injuring the employee in their employment
  • altering the position of employee to the employee’s prejudice
  • discriminating between the employee and other employees

The Fair Work Act 2009 prohibits a person from taking adverse action against another person because that person:

  • has a workplace right
  • has or hasn’t exercised a workplace right
  • proposes or proposes not to exercise a workplace right

Adverse action does not include:

  • action that is authorised by or under the Fair Work Act 2009 or any other Commonwealth law
  • an employer standing down an employee who is engaged in protected industrial action
  • an employer standing down an employee who is employed under a contract of employment that provides for the employer to stand down the employee in the circumstances

How to lodge

The Fair Work Commission can deal with matters related to the general protections provisions. However, there are different processes involved depending on whether or not the action involves a dismissal.

If the action involves a dismissal from employment you have 21 days from the date of dismissal to lodge.  There is a filing fee, but you can apply to have this fee waived.