The Fair Work Act is anything but for small business, with employees calling on ‘General Protection’ provisions within the Fair Work Act to prevent an employer taking fair action against them.
General protections provisions are being widely accessed by employees, with recent court decisions demonstrating the breadth of the provisions and the coercive powers available to protect employees who have exercised an employee right, according to Harmers Workplace Lawyers.
The general protections provisions of the Fair Work Act state that an employer must not take any ‘adverse action’ against an employee because the employee has exercised or proposes to exercise a ‘workplace right’.
Shana Schreier-Joffe, Partner at Harmers Workplace Lawyers, said claims made under these provisions by employees and unions were increasing.
“A ‘workplace right’ has a very broad meaning that encompasses everything from union activity right through to an employee’s right to make fairly commonplace enquiries or complaints with respect to their employment. ”
According to Ms Schreier-Joffe, recent decisions by Fair Work Australia show employer actions such as informing an employee their role may be made redundant, instituting a disciplinary enquiry, investigating complaints against the employee or issuing a ‘show cause’ letter, may constitute adverse actions under the Act.
A recent case, Jones v Queensland Tertiary Admissions Centre (29 April 2010), illustrates how employees may be able to effectively prevent or delay an employer’s legitimate disciplinary action, despite there being merely an allegation that the employer has acted in breach of the general protection provisions.
“Prior to a hearing by Fair Work Australia, the employee applied directly to the Federal Court for an interlocutory injunction, asserting a breach of the general protection provisions. As a result the court granted an interim injunction to prevent any further action against Ms Jones’ prior to a final hearing of the matter, though later all claims made by the employee were rejected by the court,” said Ms Schreier-Joffe.
“Our advice to businesses is not to underestimate the wide-ranging reach of these provisions or the powers of the court or Fair Work Australia to act where they feel adverse action has occurred.
“If an employee can demonstrate they have exercised an employment right as well as show some kind of adverse action taken by their employer as a result, then the onus rests with the employer to prove otherwise. Employers need to be able to document and prove that the adverse action was justified and unrelated to the employee exercising their workplace right,” she said.
