General Protection Provisions

Who does the FWA and IRA cover?

In Australia, the FWA covers most employees and employers. In Queensland, the FWA covers national system employees and employers (that is, employees and employers in the private sector).

Employees and employers of the Queensland Government, as well as local councils are generally covered by the IRA.

What protections are available to private sector employers and employees?

The FWA contains a number of provisions which prohibit a person or industrial association from taking ‘adverse action’ against another person in relation to workplace rights, industrial activities and discrimination.  

The FWA also contains a range of ancillary protections for both employers and employees including protection from discrimination, temporary absence, payment of certain fees, coercion, undue influence, misrepresentation, inducement and sham arrangements.  

What is ‘adverse action’?

The term ‘adverse action’ is broad. Every party to an employment relationship (including employers and employees) can take adverse action against the other. Adverse action includes doing, threatening and/or organising any of the following:

• An employer dismissing an employee, injuring them, altering their position to their prejudice or discriminating between them and other employees.
• A prospective employer refusing to employ a prospective employee or discriminating against them in the terms or conditions of employment offered.
• A principal terminating a contract of an independent contractor, injuring them, altering their position to the contractor’s prejudice, refusing to make use of or agree to make use of their services or refusing to supply or agree to supply goods or services to them.
• A principal proposing to enter into a contract for services with an independent contractor and then refusing to engage the contractor, discriminating against them in the terms or conditions of employment offered, refusing to make use of or agreeing to make use of their services or refusing to supply or agreeing to supply goods or services to them.
• An employee ceasing work in the service of their employer or taking industrial action against them.
• An independent contractor ceasing work under a contract or taking industrial action against the person who they entered into the contract for services with.
• An industrial association (for example, a union), or an officer or member of an industrial association, taking or organising to take industrial action against a person that has the effect, directly or indirectly of prejudicing the person in the person’s employment or prospective employment.
• An industrial association imposing a penalty, forfeiture or disability of any kind on a member of an association.

What protections exists in relation to workplace rights?

Protection from adverse action

A person is prohibited from taking ‘adverse action’ against another person for any reason protected by the FWA, including where a person has exercised a workplace right. There are many scenarios this could cover and some examples include:

• Being dismissed due to taking sick leave;
• Making a complaint about harassment in the workplace;
• Raising issues about work health safety.

Protection from coercion

A person must not seek to ‘coerce’ another person as to the exercise or non-exercise of a workplace right.

Protection from undue influence or pressure

It is unlawful for a person to exert undue influence or undue pressure on an employee to:

• make or not make an agreement or arrangement under the NES;
• make or not make an agreement or arrangement under a term of a modern award or enterprise agreement;
• agree or terminate an individual flexibility arrangement;
• accept a guarantee of annual earnings or to agree or not agree to a deduction of work related payments.

Protection from misrepresentations

A person is prohibited from knowingly or recklessly making a false or misleading representation about the workplace rights of another person or the exercise of a workplace right by another person.

What protections exists in relation to industrial activities (protection of freedom of association)?

Protection from adverse action

A person is prohibited from taking adverse action against another person because the other person is a member or non-member of an industrial association, engages or proposes to engage in industrial activity or does not engage or proposes not to engage in industrial activity.

Protection from coercion

It is unlawful for a person to organise or take, or threaten to organise or take any action against another person with the intent to coerce the other person, or a third person, to engage in industrial activity.

Protection from misrepresentations

It is unlawful for a person to knowingly or recklessly make false or misleading representations about another person’s obligation to engage in industrial activity or their obligation to disclose their involvement in an industrial association.

Protection from inducements

It is unlawful for an employer to induce an employee to take or propose to take membership action. Similarly, a person must not induce an independent contractor to take or propose to take membership action.

Membership action includes where the person becomes or does not become, remains or ceases to be, an officer or member of an industrial association (for example, a union).

What other protections exist – discrimination, illness/injury, bargaining fees, sham contracting?

Protection from adverse action due to discrimination

An employer must not take adverse action against an employee or prospective employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Protection from temporary absence – illness or injury

It is unlawful for an employer to dismiss an employee because the employee is temporarily absent from work because of a prescribed illnesses or injury. A prescribed illness or injury exists if the employee provides a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or within a reasonable time.

An illness or injury is not a prescribed kind of illness or injury if the employee’s absence:

• extends for more than 3 months; or
• the total absences of the employee, within a 12-month period, has been more than 3 months and the employee is not on paid personal/carer’s leave.

Protection from having to pay bargaining services fees

An industrial association (for example, a union), officer or member of an industrial association must not demand payment of a bargaining services fee.

A bargaining services fee is a fee payable to an industrial association or someone in lieu of an industrial association wholly or partly for the provision of bargaining services. It does not however include membership fees. This protection does not apply if the fee is payable to an industrial association under a specific contract for the provision of bargaining services.

Protection from discrimination against employer

A person must not discriminate against an employer because employees of the employer are covered or not covered by provisions of:

• the NES;
• a particular type of workplace instrument; or
• an enterprise agreement.

Protection from coercion

A person is prohibited from organising, taking or threatening action against a person to coerce them, or a third party, to employ or not employ a particular worker, or to allocate duties or responsibilities to a particular worker.

Protection from sham arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee.

Further, an employer must not dismiss or threaten to dismiss an employee under an employment contract in order to engage them as an independent contractor to perform the same or substantially the same work.

What can a person do when a general protection provision has been breached?

If a protection has been breached, a person can apply to the Fair Work Commission (FWC) and/or the Federal Court or Federal Circuit Court to hear their matter. Different timeframes and processes apply depending on whether the person has been dismissed.

Timeframe for lodging a general protections claim where an employee is dismissed

Where a person has been dismissed, an application to deal with a ‘general protections dismissal dispute’ must be lodged at the FWC by an applicant within 21 calendar days after the dismissal takes effect.

An extension of time can be sought and will only be granted if the FWC is satisfied that there are exceptional circumstances for not lodging the application on time. If a person has been dismissed, that person must commence proceedings at the FWC and cannot bypass the FWC so as to apply directly to the Federal Court or Federal Circuit Court.

Time frame for lodging a general protections claim where an employee has NOT been dismissed

An application that does not involve dismissal does not have to be lodged at the FWC prior to the matter being heard by the Federal Court or Federal Circuit Court. Applications of this kind can be lodged up to six years from the day the alleged contravention occurred.

If an application has been made to the FWC, the FWC can conduct a conference to resolve the dispute only if the parties agree to attend a conference. If the parties do not agree or if the conference is unsuccessful, an applicant can choose to apply directly to the Federal Circuit Court or the Federal Court for resolution of the dispute.

Unlike general protection disputes involving dismissal, the parties do not need to wait until a certificate is issued by the FWC. Further, arbitration through the FWC is not available.

Who has to prove that a general protection provision was breached?

Once an application is made that a general protection provision has been breached, and once it is established that certain action was taken against the applicant, it is for the defendant to prove that the action was not for a prohibited reason.

This is commonly referred to as a ‘reverse onus of proof’.

What about State employees?

The IRA covers employers and employees to whom the FWA does not apply. Generally, this means employers and employees of the Queensland government and local councils are covered by the IRA.

The IRA provides for a number of general protections at work which mirror those in the FWA. There are three broad categories of protections:

1. Workplace rights;
2. Freedom of association (industrial activities); and
3. Protection from workplace discrimination.

As with the FWA, there are also similar ancillary protections in the IRA. However, the IRA provides an additional protection which specifically prohibits an employer taking adverse action against an employee because someone has committed or is committing domestic violence against the person.

Timeframes for a general protections claim through the Queensland State based IRC

If a person has been dismissed as a result of the adverse action, they have 21 days after the dismissal takes effect to apply to the Industrial Relations Commission (IRC). For adverse action other than dismissal, an application must be made to the QIRC within 6 years of the action occurring.