Protection for your rights at work

Part 3-1 of the FW Act – under the heading ‘Rights and responsibilities of employees, employers, organisations, etc.’ – sets out what it describes as ‘general protections’. The explanatory memorandum to the FW Act describes the purpose of the general protections as ensuring ‘fairness and representation at the workplace by recognising the right to freedom of association and preventing discrimination and other unfair treatment’.

One general protection provided for by Part 3-1 of the FW Act is a prohibition on a person taking adverse action against another person because the other person has a workplace right or has exercised, or proposes to exercise, a workplace right (s 340). What is a workplace right? A ‘workplace right’ is defined by the FW Act as including: a the entitlement to the benefit of, or a role or or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; b initiating, or participating in, a process or proceeding under a workplace law or workplace instrument (see the definition below); or c the ability to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument or an inquiry by an employee in relation to their employment  (s 341(1)), if the person is an employee. The FW Act defines a ‘process or proceeding under a workplace law or a workplace instrument’ as including:

• court proceedings;
• protected industrial action;
• a protected action ballot; and
• making, varying or terminating an enterprise agreement and other matters (s 341(2)).

  What is adverse action?

  Section 342 of the FW Act defines ‘adverse action’ in the circumstances of different employer–employee relationships. Adverse actions taken by an employer against an employee include:
• dismissing the employee;
• injuring the employee in their employment;
• altering the position of the employee to the employee’s prejudice; or
• discriminating between the employee and other employees of the employer. For more information about adverse actions, see the FWC’s publication, General Protections Benchbook (available at www.fwc.gov.au/benchbook/general- protections-benchbook).

Part 3-1 of the FW Act (s 346) provides that a person must not take adverse action against another person because the other person:

• is or is not, or was or was not, an officer or member of an industrial association;
• engages in, or has at any time engaged in or proposed to engage in, industrial activity; or
• does not engage in, or has not at any time engaged in or proposed to not engage in, industrial activity. Part 3-1 of the FW Act also provides protection against adverse action taken because a person is:
• an officer or member of an industrial association;
• not an officer or member of an industrial association; or
• taking or not taking industrial action as defined by section 347 of the FW Act. Engaging in industrial action is defined by the FW Act to include:
• organising or promoting lawful activity for an industrial association;
• representing or advancing the views, claims or interests of an industrial association;
• taking part in industrial action (s 347).

Prevention of dismissal due to discrimination The FW Act also provides for the formerly named ‘unlawful terminations’ (Part 3-1). The FW Act prohibits discrimination on the grounds of 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 (s 351). The FW Act prevents termination of employment or any other adverse action on any of these grounds. Prevention of dismissal due to illness or injury Section 352 of the FW Act prevents the dismissal of an employee on the grounds of the employee’s temporary absence for illness or injury. Only termination is prohibited under this section, and it does not cover any other potential forms of adverse action.

Procedures for applying for a remedy for a breach of the general protections The FW Act provides a procedural regime for any proceedings alleging a breach of the general protections. Applications alleging a breach of the general prot­ections may be commenced by the person affected by the contravention or by an industrial association (if the industrial association is affected by the contravention, or the person affected is a member, or is entitled to be a member, of the industrial association). Time limits Under section 366 of the FW Act, an application for a remedy for a dismissal in breach of the general protections must be made to the FWC within 21 days after the dismissal or such further period as the FWC allows.

Like an extension of time limits with an unfair dismissal application, this time limit can be extended. The matters that can be taken into account for an extension of time to lodge an application are in s 366(2) of the FW Act. Notably, to receive an extension, the applicant must show that there were exceptional circumstances.

For an application for a remedy for a breach of the general protections provisions where no dismissal has occurred, the time limit is six years. Fair Work Commission Under section 365 of the FW Act (read with s 370), a person alleging a contravention of Part 3-1 must first apply to the FWC for it to deal with the dispute before applying to a court (unless an interim injunction is sought).

If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it will issue a certificate (s 368). This certificate must be received before a general protections application can be made to a court.

Section 369 of the FW Act provides that the parties may consent to the FWC dealing with the general protections application by arbitration. Notification of the parties’ consent to the FWC arbitrating the matter must be given to the FWC within 14 days of the certificate being issued. Court application As stated above, a certificate from the FWC must be received before an application can be made to a court in relation to an alleged breach of the general protections. A general protections court application must be made within 14 days of the FWC issuing the certificate (s 370 FW Act). Remedies The remedies for a breach of the general pro­tections are set out in Part 4-1 of the FW Act. The range of penalties that may be imposed range from $18 780 for an individual to $93 900 for a body corporate (which includes an industrial association).

The orders that the FWC may make following an arbitration are:

• reinstatement to employment;
• payment of compensation/lost remuneration; or
• for continuity of service and/or maintaining the person’s continuous service (s 369). Under the FW Act, in determining a general protections application, a court may make orders:
• granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
• awarding compensation for loss that a person has suffered because of the contravention; and
• reinstating a person.

What is bullying at work? The FW Act defines a person as being bullied at work if, while they are at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers and that behaviour creates a risk to health and safety (s 789FD(1)).

A person is not bullied at work if the action was reasonable management action carried out in a reasonable manner (s 789FD(2)).

In the decision of Ms SB [2014] FWC 2104, the FWC considered the application of section 789FD of the FW Act and what constitutes bullying under that section. The FWC determined that:

• ‘unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable;
• a ‘risk to health and safety’ means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ‘risk’ is the exposure to the chance of injury or loss and must also be real and not simply conceptual; and
• all of the requirements of section 789FD(1) must be read together in the assessment of whether a worker has been bullied at work.

  Remedies for bullying at work

  Since 1 January 2014, the FW Act has provided a scheme for workers to obtain remedies to stop bullying at work. The scheme applies to a wider range of workers than to people in employment relationships. The scheme also applies to contractors, sub-contractors, outworkers, apprentices, trainees, students on work experience, and volunteers (s 789FC). The scheme does not cover all businesses in Victoria. A person seeking to make an application to stop bullying at work should seek advice about whether the relevant business is covered by the scheme (see s 789FD(3)). When a person makes an application to stop bullying at work, the FWC must commence dealing with the matter within 14 days (s 789FE(1)). If the FWC is satisfied that the person has been bullied at work and there is a risk the person will continue to be bullied, the FWC may make any order it considers appropriate to prevent the person being bullied at work (s 789FF). The FWC cannot make an order for payment of a pecuniary amount. In situations of bullying at work, consideration should also be given to the relevant rights referred to in ‘General protections’, above.

  More information about bullying at work

  For more information related to bullying at work, see:
• Chapter 10.3: Work injuries;
• Chapter 11.1: Discrimination and human rights;
• Chapter 11.7: Occupational health and safety; and
• the FWC’s Anti-bullying Benchbook (available at w w w. f w c. g o v. a u / b e n c h b o o k / s t o p – b u l l y i n g – benchbook).