In Part 1 we examined the basis of the employee General Protections under the Fair Work Act (2009) - the employer taking ‘adverse (negative) action’ against an employee because they have a workplace right. Here we examine a number of specific employee workplace rights.
- A Workplace Right – Undertaking Union Industrial Activities
- A Workplace Right – Participating in a Process or Proceedings
- A Workplace Right – Employee Protected Attributes
- A Workplace Right – Extended Personal/Carer’s Leave
- Employer Awareness of General Protections & Reverse Onus of Proof
It is advisable to read Part 1 first before proceeding.
A Workplace Right – Involvement in Union Industrial Activities
When employees join a union, they are exercising a workplace right to do so. This is written into the Fair Work Act which allows them to join. When they engage in legitimate industrial activities, these activities, if permitted by the Act, are again ‘workplace rights’. Simultaneously, an employee has the workplace right not to join a union.
Additionally, an employee may have a union role or responsibility allowed to them under an Act or Enterprise Agreement. This could be acting as a union delegate or the employee representative during an Enterprise Agreement negotiation. This is a workplace right the employee holds.
A Workplace Right – Participating in a Process or Proceedings
Another workplace right is the ability to initiate, or participate in, a process or proceeding under a workplace law. This could include:
- Following the disputes process in relation to a work site dispute.
- Participating in a Fair Work Commission conference hearing;
- Initiating Court proceedings in relation to underpayment of wages;
- Taking protected industrial action in relation to an Enterprise Agreement negotiation;
- Terminating an Individual Flexibility Agreement; and
It is illegal for the employer to take adverse (negative) action against an employee who participates in any of the above.
A Workplace Right – Employee Protected Attributes
Employees (including prospective employees) are protected from adverse (negative) action being taken against them due to ‘protected attributes’ which are workplace rights.
These ‘protected attributes’ include the person’s race, national extraction, social origin, colour, sex, sexual orientation, marital status, breastfeeding, gender identity, age, disability, family/carer responsibilities, pregnancy, religion, political opinion or exposure to family and domestic violence.
A Workplace Right – Extended Personal/Carer’s Leave
Under certain circumstances employees, who have been absent on extended personal leave, may be able to access the General Protections if their employment is terminated. Employers should proceed with caution as such terminations (often involving medical reasons) have many grey areas.
Employer Awareness of General Protections
Firstly, in my experience, most employers who get caught up in General Protections claims are not aware of these employee rights. The claims literally come out of left field – quite unexpected.
Secondly, in a normal unfair dismissal case, the employee carries the ‘onus of proof’ and must prove that the termination by the employer was harsh, unjust or unreasonable. In a General Protections claim the ‘onus of proof’ is reversed requiring the employer to prove the decision they took was not taken with the intention to adversely affect an employee or to breach a workplace right. This can be quite difficult to show.
So be aware when you are making routine labour resourcing decisions which will have a negative impact on an employee. Seek professional assistance particularly where such a decision involves a termination.
These types of General Protections claims usually hit employers out of left field as they do not expect it. Given the employer must prove themselves innocent they can be very difficult and very costly. If you are seeking to alter an employee’s position or conditions negatively it is recommended to seek advice on the best way to do this.
Give me a call anytime to talk it through.
Want to know more about Hunter Employee Relations?
Want to know more about our client services?
Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Industrial Relations - Employment Law - Workplace Performance
 |
 |
 |
 |
 |
 |
 |
 |
 |