Fair Work Act ‘general protections’ unfair for small business

by 23 Jul 2010

Claims under the general protections provisions of the Fair Work Act are on the rise and are causing small businesses untold problems, according to a legal expert.

Shana Schreier-Joffe, partner at Harmers Workplace Lawyers, said that 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.

The provisions 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’.

However, Schreier-Joffe said that 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.

“These could include salary enquiries, flexible work requests as well as requests for further information regarding planned disciplinary action, so it’s easy to imagine how widely these provisions can be applied,” she said.

According to 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.

Schreier-Joffe cites 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 Schreier-Joffe.

Another recent case, Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union v Phillips Engineering Aus (15 June 2010), demonstrates the power of the court not only to stop but also to reverse a termination of employment prior to a full hearing, where it appears a breach of the general protections provision has occurred.

Schreier-Joffe said: “In this case the court determined the evidence strongly supported a finding that the employer had terminated the worker’s employment because of union activities, and that its statement that there was not enough work for the employee was made to mask its real intent.

“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.


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