GENERAL PROTECTION CLAIMS

The Fair Work Act 2009 has increased protections for employees from adverse action by their employer.  Adverse action includes termination of employment, other disciplinary action and discrimination. 

The primary issue is does the Employee have a workplace right.

The workplace rights under the FW Act have been divided into three categories. Each of the categories are not intended to be mutually exclusive.

1 Entitlements, roles and responsibilities

A person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body. Examples of these benefits, roles and responsibilities include:

·                                 an employee’s right to have an enterprise agreement apply to them if it satisfies the better off overall test;

·                                 an employee’s right to be absent from work during parental leave;

·                                 an employee’s entitlement to the benefit of an enterprise agreement or an order of FWA; and

·                                 an employee’s position in a representative role, such as a health and safety representative or harassment officer.

2 Processes and proceedings under workplace laws and instruments

A person has a workplace right if the person is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument. Examples of a process or proceedings under a workplace law or workplace instrument include:

·                                 a conference conducted or a hearing held by FWA;

·                                 court proceedings under a workplace law or workplace instrument;

·                                 protected industrial action;

·                                 making, varying or terminating an enterprise agreement; and

·                                 accepting a guarantee of annual earnings.

3 Complaints or inquiries

A person has a workplace right if the person is able to make an inquiry or complaint about his or her employment. Under the FW Act, this would include situations where an employee makes an inquiry or complaint to his or her employer, a union or a body such as the Australian Competition and Consumer Commission.

What is adverse action?

What is adverse action depends on the relationship between the relevant persons involved. For instance, adverse action is taken by an employer against an employee, if the employer:

·                                 dismisses the employee;

·                                 injures the employee in his or her employment;

·                                 alters the position of the employee to the employee’s prejudice; or

·                                 discriminates between the employee and other employees of the employer.

On the other hand, adverse action is taken by an employee against an employer, if the employee:

·                                 ceases work in the service of the employer; or

·                                 takes industrial action against the employer.

Enforcement of workplace rights

If you want to take action against an employer to enforce your workplace rights, then you can take action in Fair Work Australia  the Federal Magistrates Court or the Federal Court.   A court can make any order that is appropriate to address damage you have suffered not limited to reinstatement , compensation, or issuing a penalty.

Please understand this is only a new area of the  law and there has only been a handful of judgment. We also strongly recommend for you to not lodge your own claim and see legal advice.

Want to understand more information about your workplace right ?

Please contact Connect Legal and Mr. Jake Boghossian at your earliest convenience