Australia has some of the best employment laws in the world. Every employee, from the well-paid CEO, to the student casual in their first job, is protected from mistreatment at work. Companies benefit from laws that prevent exploitation of employees by their competitors, that would otherwise distort competition and “an even playing field”.
The laws are aptly described as General Protections because they provide a form of umbrella protection by upholding Australian values of fair play, equal treatment, freedom of association and permission to speak up or raise complaints when things are wrong in the place of employment.
The law achieves these objectives by prohibiting employers from taking adverse action against a person who exercises a workplace right or engages in industrial activity. There are many workplace rights afforded to employees. The principal ones include:
- The right to make complaints and inquiries during employment. For example, you have a right to make a complaint about your remuneration without fear of adverse action being taken against you;
- The right to take leave when you are sick, have family or carer’s responsibilities, or when you have agreed on a period of annual leave with your employer;
- The right to participate in your union; and
- The right to receive workers compensation for an injury at work.
The law also prevents employers from taking adverse action against a person because of certain attributes, including their:
- Sexual orientation;
- Physical or mental disability;
- Marital status;
- Cultural or social background;
- Political opinion;
- Family or carer responsibilities;
Not surprisingly, the laws are complex but the underlying principal is that persons who can work do so free of harassment of any kind and protected from unfair dismissal.
The categories of protection are extraordinarily numerous so taking advice to ascertain whether your situation fits within a category is usually worthwhile.
For employers, knowing how to use the Fair Work Act to promote their business interests in a positive way, without the distraction of unnecessary disputes, is invaluable and McDonald Murholme can provide that advice.
Get in touch with the employment lawyer who has acted for thousands of employees like you.
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The most common form of adverse action taken by an employer is unfairly dismissing an employee. Adverse action can also include any actions that injure or discriminate against a person or alter a person’s position to their prejudice.
For example, if an employer reduces your wage or rank, issues you with a warning, or disappoints a reasonable expectation you held, then it will be held to have taken adverse action against you. Coercion and misrepresentation concerning workplace rights and industrial activities are also prohibited.
If your employer dismisses you because you made a complaint about your remuneration or the behaviour of a colleague or manager, then your employer will have breached the General Protections provisions of the Fair Work Act 2009 (Cth) and you are entitled to make a claim.
Employees, Contractors, Prospective employees or contractors and employees as against a union.
There is a reverse onus of proof in General Protections claims. This means that when an employee alleges adverse action has been taken for an unlawful reason, the court will presume this is the case unless the employer produces sufficient evidence to prove otherwise.
If you believe adverse action has been taken against you in contravention of the General Protections provisions, you can make a claim either involving or not involving dismissal. The first step you should take is to speak with a specialist employment lawyer. McDonald Murholme can assist you with understanding your legal rights and lodge the application on your behalf.
After an application is lodged, the Fair Work Commission’s task is to conduct a conciliation or mediation to resolve the dispute. If the parties are not able to resolve the matter with the Commission’s assistance, the Commission issues a certificate which allows the parties to proceed in the courts. However, the majority of these claims are resolved at the stage of conciliation.
Yes. You have 21 days from the date of dismissal to lodge an application. It is crucial to apply before this time.
The most likely outcome is a monetary amount paid by the employer to compensate you for loss of income and the shock, distress and any mental injury caused by the adverse action.
The majority of General Protection cases will settle before going to court. However, if the matter proceeds to court and a breach of the General Protections provision is found, the Federal Court or the Federal Circuit Court can make any order the court considers appropriate. This can include an order for reinstatement or an award of compensation for the loss you have suffered plus interest.
A civil penalty may also be imposed on the company for the contravention depending on the seriousness of its conduct.
“The McDonald Murholme staff made me feel so comfortable, they provided me with great advice and helped me reach an outcome that I was very… more
“The McDonald Murholme staff made me feel so comfortable, they provided me with great advice and helped me reach an outcome that I was very happy with.”
“Thank you, Edward, Alan and the team. Your support throughout the journey was outstanding. I cannot recommend you enough. I could not be happier. Thank… more
“Thank you, Edward, Alan and the team. Your support throughout the journey was outstanding. I cannot recommend you enough. I could not be happier. Thank you again.”
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“Alan, Ned and the team at McDonald Murholme took a genuine interest in my situation. Their advice and guidance helped me quickly achieve a fair… more
“Alan, Ned and the team at McDonald Murholme took a genuine interest in my situation. Their advice and guidance helped me quickly achieve a fair settlement from my employer.”
“My need for support from McDonald Murholme came at a time when I was also focussing on a couple of other personal issues - both… more
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“Alan, Julie and the team at McDonald Murholme helped me through a very stressful time with my employer. Once I contacted and engaged them they… more
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