These are the opening remarks in the Fair Work Commission’s general protections benchbook as to what they are and mean.
“Part 3 – What are the general protections?
About 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 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)6F
- 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.7F
Civil remedy provisions
All of the general protections prohibitions are civil remedy provisions.8F
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.9F10
What are the general protections?
Role of general protections
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.10F
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.
How do the general protections work?
Adverse action taken ‘because’ of a proscribed reason
A number of the general protections provisions aim to protect employees from adverse action taken because of a particular proscribed reason. For example, s.340 says:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
[Emphasis added]
Thus a general protections dispute occurs when it is alleged that adverse action is taken – or when a threat to take adverse action occurs – because a person has one of these rights, exercises or does not exercise such a right, or proposes or does not propose to exercise such a right.
Other general protections provisions which use ‘because’ are:
How do the general protections work?
- s.346 (regarding industrial activities)
- s.351 (regarding discrimination)
- s.352 (regarding temporary absence in relation to illness or injury), and
- s.354 (regarding coverage by particular instruments, including provisions of the National Employment Standards). “