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Navigating a General Protections Claim with the Fair Work Commission

You have Protected Rights at Work.


If these are violated, you may have a claim in the Fair Work Commission.


As a qualified and experienced Lawyer, Therapist, Mediator and Conciliator, I have assisted many with securing compensation for their General Protections rights under the Fair Work Act 2009 (Cth) before the Fair work Commisison for the postivie outcome of compensation.


General Protections Laws Protect your Rights at Work.


First, you must check whether the General Protections Application applies to you.


YOUR ELIGIBILITY

The law protects most workers from general protections dismissal.

Your eligibility depends on several things including:

  • whether you have been dismissed

  • whether you are an eligible employee

  • who you worked for

  • whether you apply within the 21 day timeframe.

THE GENERAL PROTECTIONS LAWS APPLY TO MOST BUSINESSES

The laws apply to most employers as well as employees, potential employees, and independent contractors.


Businesses that must Follow the Laws Constitutionally-covered businesses must follow the general protections laws. This includes:

  • a constitutional corporation. This includes:

    • most proprietary limited (Pty Ltd) companies

    • foreign corporations incorporated overseas

    • trading or financial corporations formed within Australia

  • the Australian Government

  • a Commonwealth authority, which means:

    • a body corporate established for a public purpose by or under a Commonwealth law, or

    • a body corporate incorporated under a Commonwealth, state or territory law where the Commonwealth has a controlling interest in that body

  • a body corporate incorporated in a territory of Australia

  • a business or organisation conducted principally in a territory of Australia or a place acquired by the Commonwealth for public purposes.


Businesses that may not be Covered Your workplace may not be covered by the general protections if it is:

  • a sole trader or partnership in Western Australia

  • a state government department (except in Victoria)

  • a non-corporate state public sector agency (except in Victoria)

  • a local government body that is not a corporation

  • a local government body not engaged in trading or financial activities.


Employees and Potential Employees The general protections laws protect most employees. An employee is a person who has an employment contract with an employer. That employer pays them a salary.

The employee may be permanent (full time or part time), casual or on a fixed-term contract.

The general protections laws cover people who are:

  • current employees

  • potential employees (such as job applicants).

You are not an employee if:

  • you are an independent contractor or subcontractor

  • you are not paid for the work you do (such as a volunteer or unpaid intern)

  • you are a sole trader.

If you are an employee and you have lost your job, you can apply to us using Form F8. For other disputes, including if you are applying as a potential employee, use Form F8C.


Employees of Recruitment Agencies and Labour Hire Companies If you work through an agency:

  • your employer is the agency (the ‘principal’) and they pay you

  • the company you do work for is your ‘host’.

Only the agency can dismiss you. You cannot start a claim for dismissal against the host. For applications about dismissal under general protections, you must use Form F8 and give us details of:

  • the agency that pays you AND

  • the company you do the work for.

For disputes with your principal or your host where you have not lost your job, use Form F8C.


Contractors The general protections laws cover independent contractors who have a dispute with a company or person. Use Form F8C to apply to us for help.

Contractors and sub-contractors cannot start a claim for dismissal because you have a contract to provide services, not an employment contract.

Note: different businesses may use the term ‘contractor’ in different ways. See the difference between contractors and employees for more information.

Employers and potential employers The general protections laws cover current employers and potential employers. A 'potential' employer is most often someone who interviews an applicant for a job vacancy. An employer or potential employer can only apply for help with a dispute about general protections - no dismissal (Form F8C).


If General Protections do not Cover you You may be able to apply for Unlawful termination if these laws do not protect you and you have been dismissed from your job.


Other help may also be available:

  • anti-discrimination laws in all states and territories

  • the industrial relations organisation in your state or territory:

    • ACT – you are part of the national workplace relations system

    • NSW – Industrial Relations Commission NSW

    • NT – you are part of the national workplace relations system

    • Qld – Queensland Industrial Relations Commission

    • SA – South Australian Employment Tribunal

    • Vic – you are part of the national workplace relations system

    • WA – Western Australian Industrial Relations Commission

    • Tas – Tasmanian Industrial Commission


GENERAL PROTECTIONS LAWS

The general protections laws protect most people from:

  • harmful (adverse) action

  • coercion

  • undue influence or pressure

  • misrepresentation

where they affect workplace rights.

Most cases we deal with are about adverse action.

In these cases the person who applies must show:

  1. they are eligible to apply

  2. someone took adverse action against them for a prohibited reason

For example: an employee may be able to apply if their employer:

  • dismisses them (takes adverse action)

  • because they were away from work when sick (prohibited reason for dismissing someone).

When a person applies under general protections laws they are starting a legal process.

Who is eligible to apply?

Most people are eligible to apply.


ADVERSE ACTION

Adverse action is when someone acts, plans or threatens to:

  • dismiss an employee

  • injure an employee in their employment

  • harm an employee by changing their job, for example by cutting shifts or hours

  • discriminate between employees

  • not hire someone

  • offer a potential employee different (unfair) terms and conditions compared to other employees

  • end or refuse to enter into a contract with an independent contractor

  • take industrial action against their employer.

In most cases it is an employer that takes adverse action. But other people can also take adverse action. This includes contractors, employees and industrial associations.


The full list of adverse actions is in section 342 of the Act .


You may be eligible to apply if someone has taken one of these adverse actions against you. You must also show that this action was taken for a prohibited reason.


If adverse action has not happened to you, you may still be protected. See Other protections at work.


What is not Adverse Action

Not all harmful action is 'adverse' action. Someone can take action for genuine reasons. For example, an employer is not taking adverse action when they:

  • offer a lower salary to a job applicant because they have less experience

  • decide not to hire a potential employee because they do not have a driver’s licence and the job requires a licence

  • make a person’s role genuinely redundant.


What is Adverse Action? Adverse action can include:

  • being sacked or fired (dismissed)

  • being demoted

  • being overlooked for promotion.

Most often an employer takes this action against an employee. See What is adverse action? for more information.


What are Prohibited easons? A person cannot take adverse action for a reason that is against the law (prohibited). This can include taking action against you:

  • because you used your workplace rights (such as taking leave)

  • because of your age, sex, disability or another discriminatory reason

  • because you are away from work sick or injured.


Other Protections at Work The workplace rights of employees are also protected from:

  • coercion

  • undue influence or pressure

  • misrepresentation.


Types of General Protection Applications There are 2 types of general protection applications. The type of application depends on whether you have been dismissed:

  • general protections dismissal (Form F8)

  • general protections no dismissal (Form F8C)

General protections dismissal applications are the most common. These make up 85% of the applications we receive. This is where you have been dismissed for a reason prohibited by law. See General protections dismissal for more information.


The law says someone can't take harmful ('adverse') against you for a prohibited reason.


The Fair Work Act lists all of the prohibited reasons.

[Sections 340-358 of the Fair Work Act 2009.]


Long periods of Sick Leave Employees may be able to apply if they are fired because they are temporarily away from work while sick or injured.


You may be eligible to apply for general protections dismissal if this happens to you.

[Section 352 of the Fair Work Act 2009]

[Regulation 3.01 of the Fair Work Regulations 2009.]


Discrimination The law protects employees and potential employees from discrimination at work. You may be able to apply under the general protections if your employer takes adverse action against you because of your features (attributes).


Workplace Rights You may be able to apply under the general protections if adverse action has been taken against you:

  • because you have a workplace right

  • because you used a workplace right

  • because you say you will use a workplace right

  • to stop you using a workplace right

  • because another person says they will use a workplace right for your benefit.

[Section 340 of the Fair Work Act 2009.] For example, a workplace right might be the right to ask about your rate of pay or to make a complaint or enquiry about your employment.


Industrial Activities The law protects your right to participate (or not participate) in industrial activities. You can choose to be involved (or not involved) in an industrial association.


This includes unions and employer associations. You may be able to apply under general protections laws if a person:

  • takes adverse action because a person is (or is not) involved in industrial activities (see below)

  • coerces another person to be involved in industrial activity

  • makes misrepresentations about a persons

    • obligation to engage in industrial activity

    • obligation to disclose information about membership to an industrial association

    • obligation to disclose information about engaging in industrial activities

  • induces their employees to become a member of an industrial association

  • induces their employees to stop being a member of an industrial association.


Industrial Activities Include:

  • being a member of an industrial association

  • becoming involved in establishing a union or employer association

  • organising or promoting lawful activities of a union or employer association

  • encouraging participation in a lawful activity for a union or employer association

  • complying with a legal request made by a union or employer association

  • representing the views, claims or interests of a union or employer association

  • paying a fee to a union or employer association

  • seeking to be represented a union or employer association.

[Sections 346-350 of the Fair Work Act 2009.]


Sham Contracting Most employees are protected from 'sham' arrangements. An employer must not tell an employee that they are being hired as a contractor.


An employer must not dismiss or threaten to dismiss an employee:

  • to hire them as an independent contractor

  • who would be doing the same or similar work.

[Sections 357-359 of the Fair Work Act 2009.]


Employees are protected from coercion, undue influence or pressure and misrepresentation that affects their workplace rights. You may be able to apply under the general protections laws if this happens to you.

Coercion Coercion means being forced to do something against your will. Under the general protections, it is unlawful for a person to take, threaten or organise any action to force you to:

  • use a workplace right

  • not use a workplace right

  • propose to use a workplace right

  • use a workplace right in a certain way

  • not use a workplace right in a certain way

  • propose to use a workplace right in a certain way.

For example an employee may be able to apply if their employer threatens to fire them unless they change their roster. [Section 343 of the Fair Work Act 2009.]

Undue Influence or Pressure You may be able to apply under general protections if your employer uses their power to pressure or influence you to:

  • make (or not make) an agreement or arrangement under:

    • the National Employment Standards

    • a term of a modern award

    • a term of an enterprise agreement

  • agree to an individual flexibility arrangement

  • end an individual flexibility arrangement

  • accept a guarantee on annual earnings

  • agree (or not agree) to deductions being made your pay.

[Section 344 of the Fair Work Act 2009.]

Misrepresentation Misrepresentation is when a person you rely on tells you something that is false or misleading. You may be able to apply under the general protections if a person knowingly (or recklessly):

  • makes a misrepresentation about your workplace rights

  • makes a misrepresentation about the effect of using your workplace rights.

[Section 345 of the Fair Work Act 2009.]


POSSIBLE OUTCOMES

Many cases reach an agreement at a conference, where settlement options are flexible. If there is no agreement, the employee may choose to take it further. You do not have to wait for the conference to settle the case.

Private Settlement between Employer and Employee Even after an employee applies to us, they can continue to discuss the case with their employer. Sometimes the 2 sides resolve the issue and reach their own settlement before the conference with us.

The employee should tell us if they reach a private agreement.

Outcomes of a Conference At a conference, we try to resolve disputes by helping both sides discuss the issues and options. The sides often reach agreement by the end of the conference discussion.

If the Parties Agree If the parties agree to a settlement:

  • the conciliator writes the agreement with the 'terms of settlement'* for the parties to sign OR

  • the parties write the agreement themselves and sign it.

The settlement creates a legal contract between the parties.

If the conciliator writes the agreement, both sides should review it before they sign. It is important that they are satisfied it reflects their agreement.

The outcome can be whatever the parties agree to.

Examples of settlements are:

  • an apology

  • the employer allows the employee to resign

  • the employer gives the employee their job back (‘reinstatement’*)

  • the employee's employment continues as it did before (‘continuity of service’*)

  • the employer pays the entitlements they owe the employee

  • financial settlement

  • the employer provides a ‘statement of service’*

  • both parties agree to keep the details confidential and not criticise the other (‘non-disparagement agreement’*)

  • both parties agree, where the law allows, that they will not take any other actions against the other party (‘release agreement’).

In more than 40% of agreements, the average compensation is less than $4,000. It is less than $10,000 in 75% of cases.

If the Parties do not Agree A Commission Member issues a certificate to the employer and employee. This confirms the parties could not settle or resolve the dispute.

The Member usually considers relevant objections before they issue the certificate. Once the employee has the certificate, they have 14 days to decide to:

  • apply for arbitration*, if the employer agrees

  • take the case to a federal court.

The Member may think the employee is unlikely to win their case if they continue to arbitration or to a court. The Member must say in the certificate if they believe the employee does not have a reasonable chance ('prospect') of success.

About Arbitration It is possible, but rare, for cases to continue to arbitration. In arbitration, the Member makes a final decision on the case.

Both sides must tell the Commission that they agree to arbitration.


Use Form F8B to notify the Commission.


Both sides must sign the form before you submit it.

The Member may decide compensation is the right outcome.


This may include money for non-financial loss, such as hurt, humiliation and distress.


The Member must see evidence that the employer’s action caused the non-financial loss.

Not all general protections cases result in compensation.

The Member's decision is final ('binding'). Either side may decide to appeal the decision.

For further information, contact the Fair Work Commission


Whether you are employer or employee, contact Andrea Consults for further assistance




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