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The Fair Work Act has introduced a new scheme of general workplace protections which means that it will be more important than ever for employers to: · keep a paper trail of decisions and reasons for decisions affecting employees; and · ensure that prohibited grounds do not form part of any workplace decision.
Under the old Work Choices legislation, employee rights to take legal action, other than for unfair dismissal, were largely restricted to: · “unlawful dismissal applications” if employment was terminated for reasons including a prohibited reason such as age, race, sex etc; and · “freedom of association” provisions to protect employees from adverse treatment because they were or were not a member of a union. These “protections” have been carried over to the Fair Work Act but there have been major new provisions enacted under the banner of “General protections” to deal with workplace discrimination and adverse treatment. The main addition is the concept of “adverse action”. This essentially prohibits taking an action against someone (whether an employee, prospective employee, contractor, union or employer) because they have exercised or are entitled to exercise a workplace right. “Workplace right” is defined widely to include situations where a person: · has an entitlement, role or responsibility under a workplace law, court order or industrial instrument (eg modern award); · is able to be involved in a legal process under a workplace law or instrument (eg notification of a dispute or participating in enterprise bargaining); · is able to make or has made a complaint or enquiry about their employment (eg to the Fair Work Ombudsman). Adverse action can take various forms including: · termination of employment; · altering the position of an employee to their prejudice; · discrimination; · refusing to employ a prospective employee; · threatening to do an action; · co-ercion and undue influence or pressure. An aggrieved person can complain to the new Fair Work Ombudsman or can privately make application to Fair Work Australia for injunctions, uncapped monetary damages and penalties of up to $33,000 per contravention. There is also a reverse onus of proof so a respondent to an adverse action claim will need to produce evidence that the action it took was not for a prohibited reason. Accordingly, it is important that all persons be aware of these provisions and take steps to be able to prove, if called upon, that an action has not been taken for a prohibited reason. A detailed paper setting out the changes is available on our website and can be accessed from the following link: http://www.workplace-lawyers.com.au/download/Newsflash%20Employment%20Law%20paper%20200609.pdf. It can also be viewed or downloaded from our website at http://www.workplace-lawyers.com.au/white-papers-for-review.html. |
Employers