Employment Law - Unfair dismissals under the Fair Work Act - General Protection Provisions

The Fair Work Act incorporates general protection provisions in Part 3 – 1. This Part incorporates the type of protection provided under unfair dismissal and freedom of association provisions which was incorporated into the Work Choices legislation. The unlawful termination provisions of Work Choices have been re-enacted in Part 6 – 4 of the Fair Work Act. However, the Fair Work Act provides that a person may not apply for help against an unlawful termination if they are also entitled to challenge the dismissal under the general protection provisions.

The general protection provisions of the Fair Work Act provide protection against “adverse action” because a person has a “work place right”. The prohibition extends beyond termination to include other forms of adverse action. Examples might be protecting an employee from action by an employer where an employer injures the employee in his or her employment, alters his or her position to the employee’s prejudice, or discriminates against the employee.

The protection against adverse action also applies to prohibit adverse action taken by an employer against a prospective employee, a principal against an independent contractor, an employee against an employer, an independent contractor against a principal, and an industrial association against a person.

A person is taken to have a work place right if they are entitled to the benefit of, or have a role or responsibility under, a work place law or work place instrument. The person also has a work place right if they can make a complaint or enquiry to a person or body that has the capacity to seek compliance with a work place law. These rights are directed towards circumstances where an employee is terminated following a request to be paid in accordance with award entitlements or where employees are required to work excessive overtime or are placed under excessive pressure to achieve targets or comply with unreasonable procedures.

In addition to the broad protection against adverse action in relation to a work place right, the Fair Work Act also prohibits the taking of adverse action against a person because the other person is or is not a member of an industrial association, engages in lawful industrial activity or refuses to engage in industrial activity whether lawful or unlawful.

The Fair Work Act also prohibits an employer from taking adverse action (including dismissal) because of an employee’s race, color, sex, sexual preference, age, physical or mental disability, marital status, family or care’s responsibilities, pregnancy, religion, political opinion, national extraction or social origins. The age anti-discrimination requirement will become increasingly important to ‘baby boomers’ who will be want to extend their employment into their late sixties and seventies.

This is the first time that discrimination beyond termination has been covered in federal industrial relations legislation. The Fair Work Act now opens a new discrimination jurisdiction which by-passes the requirements of making a complaint in the State or Commonwealth Human Rights and Equal Opportunity Commissions. The new changes have procedural consequences such as the ability to seek an injunction, protection form cost orders and reverse onus provisions.

The Fair Work Act continues the approach of Work Choices to include a reverse onus to require a respondent employer to prove that adverse action (including termination) was not taken because of a prohibited attribute. In other words, where a general protection application is brought in relation to a termination or other disciplinary matter, it will be necessary for the employer to prove that the dismissal did not occur for a prohibited reason such as age, or a refusal to work excessive overtime or in relation to excessive and unreasonable work demands or procedural requirements. The employer will have to affirmatively prove that the adverse action occurred for a reason other than the work place right or other proscribed reasons. The Fair Work Act requires that the prohibited attribute need not be the substantial or dominant reason for the adverse action. Conduct will be prohibited if the reason that an employer took adverse action merely included the prohibited attribute.

The procedure for a general protection application will be the same as an application under Work Choices for unlawful termination. An application alleging adverse action under the general protection provisions must be filled with Fair Work Australia within sixty days. Fair work Australia must then conduct a conference. Following an unsuccessful conference, an applicant must elect whether to proceed either to the Federal Court or the Federal Magistrate’s Court within fourteen days. Importantly, an employee may by-pass Fair Work Australia by filing an application together with an application for an interim injunction directly with either the Federal Court or the Federal Magistrates’ Court which will then formally hear the application without the involvement of Fair Work Australia.