By Robby Magyar
When running any business, complying with Australia’s complicated workplace laws is a must and ignorance is not an excuse.
Failure to adhere to workplace laws can result in a myriad of issues, including unfair dismissal claims, general protections claims, an investigation by the Fair Work Ombudsman (FWO), and even litigation for non-compliance, which can result in significant fines.
Whilst many businesses have been left picking up the pieces after a global pandemic, the law remains unforgiving where non-compliance with workplace law is concerned.
In this article, I explain what general protections are and why employers must ensure they’re compliant with all workplace laws.
General protections – what are they?
The Fair Work Act 2009 (Cth) (the Act) provides employees with the protection of certain rights, including:
- benefits and responsibilities under workplace laws and instruments (for example, to be paid minimum entitlements under the applicable modern award or enterprise agreement, exercising leave entitlements);
- initiating or participating in processes or proceedings under workplace laws and instruments (for example, agreeing to cash out annual leave, applying for a stop-bullying order, engaging in protected industrial action);
- making a complaint or enquiry to a person/body who can seek compliance with a workplace law (for example, making a complaint to the FWO or a work health and safety authority); and
- making a complaint or enquiry in relation to their employment.
A person, such as an employer, must not take any adverse action against another person (including a current or prospective employee) because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
- termination of employment;
- changing their job or the terms of their job to their disadvantage;
- not hiring them; and
- offering them worse terms and conditions compared to other employees.
Workers are also protected from certain actions being taken against them:
- because of certain personal attributes, such as race, age, physical or mental disability etc;
- because they have engaged or proposed to engage in industrial activities (for example, joining or leaving a union, promoting a union, taking part in industrial action (such as strikes));
- while negotiating certain individual arrangements (for example, individual flexibility agreements and wage deductions).
Most types of workers, including prospective employees, employees, and independent contractors (and their staff) are all protected by these provisions.
The FWO and Federal Circuit Court have set clear reminders time and time again that breaches of the general protections provisions can and will result in penalties if not rectified, with no compensation cap being imposed on such claims.
Case study 1 – Employee v Mah-jong club
This position was demonstrated in a 2016 case heard by the Federal Circuit Court. The employer, a Mah-jong club, was ordered to pay over $415,000 in compensation for breaching employment laws and engaging in adverse action after it transferred their full-time employee to a part-time status following the employee being on a period of workers compensation.
Additional penalties of $50,000 were imposed on the company after the employee argued that they felt they had to resign after the employer cut his hours and changed his employment status because of lodging a workers compensation claim after seriously injuring his leg at work. The former employee suffered significant financial loss and struggled in securing alternate employment.
The Court rejected the employer’s proposition that they changed the employment type to cut costs. The Federal Circuit Court said that the harsh financial penalty imposed on the company should be taken as a strong warning to other employers that the “unilateral and disadvantageous alteration” of an employee’s contract or position in the circumstances when an employee is seen to be exercising a workplace right will not be tolerated.
Case study 2 – Tran v Macquarie University
The FWO and court system continue to impose significant penalties on employers who fail to meet their obligations and breach the general protections provisions of the Act. Take the case of Tran v Macquarie University (No.2) .
Ms Tran was engaged by Macquarie University between 2007 and 2019 when her role was made redundant. In 2010, Ms Tran raised a complaint about her supervisor regarding her workload, which was resolved via mediation. However, in 2014, there was a change in management, and Ms Tran began to experience increased pressure from her direct supervisor in respect to workload and working hours. Ms Tran attempted to resolve the issues with her supervisor, but when this was unsuccessful, she made a series of complaints up until her termination. The Federal Circuit Court noted the evidence suggested Macquarie University handled the complaints poorly.
In 2017, the University commenced a restructure in which Ms Tran’s role was made redundant, and two higher roles were created. Ms Tran expressed a desire to be redeployed. Macquarie failed to give priority consideration to staff members seeking redeployment and failed to assess Ms Tran’s skills in relation to positions she applied for. It additionally failed to disclose the existence of available positions to which she was entitled to receive a priority interview. These failures were in direct breach of the University’s Enterprise Agreement.
Ms Tran alleged that the restructuring was targeted at her specifically, with Macquarie University’s intention being to remove her from her role due to the complaints she had made. The Court found that Ms Tran had exercised her workplace right to make a complaint on several occasions, and the restructure that disestablished Ms Tran’s position amounted to adverse action, being that the adverse action was taken because of the complaints made by Ms Tran.
Ms Tran was awarded a staggering $664,601.38 in compensation, including $45,000 in penalties, $278,282 in future economic loss, and $15,000 in non-economic loss (distress, hurt and humiliation caused by the employer’s actions).
Are you at risk of a general protections claim?
These cases highlight that ignorance and failure to meet obligations under industrial instruments are no excuse. In the context of rising employment claims due to the COVID-19 pandemic and economic uncertainty, employers must ensure compliance with all workplace laws.
Where you’re considering taking any type of adverse action against an employee, including disciplinary action, termination of employment, refusing a promotion/redeployment/pay increase or changing their employment conditions to something less favourable, you must consider if doing so puts your business at risk of a general protections claim. It is recommended that before such action is taken, advice is sought to identify and manage any risks arising in respect of that decision.
If you have any questions about general protections claims or any other workplace matters, please contact our 24/7 Telephone Advisory Service. HR Assured clients receive advice any time they want it, with no limit on the number of calls.
Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.