General Protections Lawyers

The General Protections provisions in the Fair Work Act are intricate and specialized, with numerous regulations to navigate. Compliance with these regulations is crucial for both employers and employees in Australia, as penalties for breaches can result in serious financial consequences and reputational damage to a company's brand and customer loyalty.

At our Sydney-based employment law firm, our experienced team of lawyers has a proven track record of advising clients of all sizes on a range of General Protection Law matters. Contact us today for expert guidance on how to navigate these complex regulations.

Areas of Expertise - Employment Litigation

Adverse Actions

Protection from adverse action is a crucial aspect of workplace rights that aims to protect employees from any negative consequences or retaliation that may result from exercising their workplace rights or engaging in industrial activity. This protection covers a wide range of actions taken by the employer that may disadvantage the employee, such as demotion, suspension, or termination of employment, reduction in pay or benefits, or any other form of discrimination or adverse treatment.

Under the Fair Work Act 2009, it is illegal for employers to take any adverse action against employees or prospective employees because they have exercised a workplace right or engaged in industrial activity. Workplace rights can include making a complaint or inquiry about an employment matter, participating in workplace investigations, or taking leave or other entitlements. Industrial activity can refer to any lawful activity taken by an employee in support of their employment interests, such as being a member of a union, participating in industrial action, or bargaining collectively with an employer.

If an employee believes that they have been subject to adverse action, they can make a complaint to the Fair Work Commission or take legal action against their employer. In these situations, seeking legal advice from a reputable law firm that specializes in workplace relations can be invaluable in navigating the complex legal framework surrounding adverse action and ensuring that the employee's rights and interests are protected. At BlackBay Lawyers, our experienced lawyers can provide strategic legal advice on pursuing or defending adverse action disputes and striving to achieve a successful outcome for parties to disputes and litigation.

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Other Protections

At BlackBay Lawyers, we understand that General Protections under the Fair Work Act extend beyond just the well-known protections of workplace rights, industrial activities, and sham arrangements. We also provide legal services to clients in relation to other General Protections provisions, including those that protect employees or prospective employees from discrimination.

Discrimination can come in many forms, including race, age, gender, disability, religion, and more. It is essential for employers to ensure that they are not discriminating against any employees or job applicants, as this can lead to legal disputes and damage to the employer's reputation.

Our team of experienced lawyers can help clients navigate the complexities of discrimination laws and advise them on the best course of action to avoid discrimination claims. We can also assist clients who are facing discrimination claims and work to achieve a successful outcome for them.

With our in-depth knowledge of General Protections laws, we can provide clients with strategic legal advice tailored to their specific situation. Our goal is to protect our clients' rights and interests and strive for the best possible outcome in General Protections disputes and litigation.

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Sham Arrangements

At BlackBay Lawyers, we understand the importance of fair and honest employment arrangements. Unfortunately, some employers may try to misrepresent their employment relationships as independent contracting arrangements, known as sham arrangements. This can have serious legal implications for both employers and employees.

Our experienced legal team can provide strategic advice and guidance on identifying and addressing sham arrangements. We can assist both employers and employees in understanding their rights and obligations under the law, and help to resolve any disputes that may arise.

We can also provide representation and advocacy in legal proceedings related to sham arrangements, including investigations, prosecutions, and appeals. Our goal is to help our clients achieve a successful outcome and protect their interests, whether they are seeking to pursue or defend against claims related to sham arrangements.

Overall, we are dedicated to providing our clients with the highest level of legal expertise and support in all matters related to General Protections, including sham arrangements. Contact us today to learn more about how we can assist you with your legal needs.

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Industrial Activities

General Protections for Industrial Activities refers to provisions in the Fair Work Act 2009 (Cth) that protect employees from adverse action being taken against them by their employer or other parties for exercising workplace rights. Industrial activities can include union membership or participation, engaging in industrial action, or making a complaint or inquiry related to employment or workplace rights.

At BlackBay Lawyers, our experienced team provides strategic legal advice to clients on General Protections for Industrial Activities. We help our clients understand their workplace rights and navigate any disputes that may arise. Our lawyers have a proven track record of success in advising clients on how to pursue or defend general protection disputes, with a focus on achieving a favorable outcome for all parties involved.

We work closely with our clients to understand their specific needs and objectives, and tailor our advice accordingly. Our lawyers have a deep understanding of the relevant legislation, regulations, and case law, and can provide our clients with practical and effective solutions to their legal issues.

Whether you are an employee who believes their rights have been violated, or an employer facing allegations of adverse action, our team can provide the guidance and representation you need to achieve the best possible outcome. Contact us today to learn more about our General Protections for Industrial Activities legal services.

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Workplace Rights

The general protections provisions of the Fair Work Act 2009 provide protection for employees against adverse action taken by employers. Adverse action can take many forms, such as dismissal, demotion, or discrimination, and may be taken by an employer as a result of an employee exercising a workplace right, engaging in industrial activity, or making a complaint or inquiry about their employment.

At BlackBay Lawyers, we have experience in advising both employers and employees on general protections disputes. Our lawyers can help clients navigate the complexities of these disputes and provide strategic advice on how to pursue or defend claims. We work with our clients to understand their specific circumstances and goals, and we strive to achieve a successful outcome for them through negotiation, mediation, or litigation.

Whether you are an employer facing a general protections claim or an employee who has been subjected to adverse action, we can help. Our team of experienced lawyers will provide you with expert legal advice and support throughout the process. We understand the importance of workplace rights and the impact that disputes can have on both employers and employees. That's why we are committed to providing our clients with the best possible outcome and ensuring that their workplace rights are protected.

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Practice Area - Employment Law

General Protections

BlackBay Lawyers, one of Australia's most seasoned Employment Law Firms, is here to help you navigate through the General Protections provisions. Our team of employment lawyers, based in Sydney, is well-equipped to offer expert advice and assistance on all aspects of General Protections.

Don't hesitate to reach out for help or guidance in dealing with General Protections in Australia. Contact our experienced employment law team today at (02) 0889 9100 or send us an enquiry below.

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Practice Head - Litigation

Our litigation team combines decades of experience in the legal industry with countless successful outcomes. Together with our leadership, we have built one of the the best litigation law firms in Australia.

Victoria-Jane Otavski

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Victoria-Jane is a renowned Australian commercial lawyer and has a substantial commercial litigation practice. She is the first point of contact for many of Australia's well known, high profile corporations on all commercial litigation cases.

Victoria-Jane has in excess of 15 years experience in commercial law and understands the complexities of commercial law and the need to balance client interests in achieving vindication and managing reputational concerns. Combining her broad general practice with her specialised practice areas, Victoria-Jane is in a unique position to provide strategic and holistic legal services to clients

If you are in need of a Commercial Lawyer, contact Victoria-Jane below.

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General Protections Information

General Protections - Industrial Activities

The General Protections provisions of the Fair Work Act 2009 protect individuals from adverse action in relation to their engagement in industrial activity or membership in an industrial association. Section 346 of the Act prohibits taking adverse action against a person because they are or are not a member of an industrial association or engage or do not engage in industrial activity.

A person engages in industrial activity if they become or do not become a member of an industrial association, are involved in establishing an industrial association, organize, promote, encourage, or participate in lawful industrial activity, or represent the views, claims, or interests of an industrial association.

Section 347 of the Act provides examples of lawful industrial activity, which include:

Attending meetings or rallies related to industrial matters
Participating in a union delegate training
Seeking advice or assistance from a union about an industrial matter
Joining a union
Encouraging other employees to join a union

Section 348 of the Act prohibits taking any action to coerce another person to engage in industrial activity. Additionally, it is an offence under section 349 of the Act to knowingly or recklessly make a false or misleading representation about a person’s obligation to engage in industrial activity.

Section 350 of the Act prohibits employers from inducing an employee to take, or not take, membership action, and provides that such action is not authorized by an enterprise agreement. An employer also cannot take adverse action against an employee for engaging in, or not engaging in, membership action.

What is the Fair Work Act 2009 and what does it do?

The Fair Work Act 2009 is a comprehensive piece of employment law legislation in Australia that outlines the rights and protections of employees, employers, and employee organizations. The Act's primary purpose is to provide a framework that promotes productive, equitable, and harmonious workplaces.

Chapter 3 of the Act sets out the general protections, which aim to protect the rights of employees in the workplace. These protections include the right to freedom of association, protection from discrimination, protection from undue influence or pressure, and protection against sham arrangements.

The general protections provisions are designed to provide a civil remedy for employees who have been subjected to adverse action by their employer. Adverse action refers to any action taken by an employer that could negatively impact an employee's working conditions, employment status, or other terms of their employment. Examples of adverse action include termination of employment, demotion, reduction in pay or hours, or any other action that could be seen as detrimental to the employee.

If a general protections provision is breached, the affected employee can apply to a Court for a financial penalty, injunction, or any other order that the Court deems appropriate. This means that employees have the right to seek legal recourse if their rights have been violated.

Overall, the Fair Work Act 2009 provides a comprehensive legal framework that promotes fair and productive workplaces in Australia, and the general protections provisions play a crucial role in protecting the rights and interests of employees.

General Protections - Workplace Rights

Section 340(1) of the Fair Work Act 2009 provides that a person must not take adverse action against another person because they have a workplace right, or have exercised or proposed to exercise that right, or to prevent them from exercising that right. A "workplace right" is broadly defined in section 341(1) and includes entitlements, roles, or responsibilities under workplace laws or instruments, the ability to initiate or participate in a process or proceeding under a workplace law or instrument, and the ability to make a complaint or inquiry in relation to employment.

Examples of a process or proceeding under a workplace law or instrument include conferences conducted by the Fair Work Commission, court proceedings under workplace laws, and protected industrial action.

Adverse actions that can be taken by an employer or other person include unfair dismissal, altering the position of an employee to their prejudice, discrimination against employees or prospective employees, and refusing to employ a prospective employee or to make use of services offered by an independent contractor.

If a person believes they have been subject to adverse action in breach of the general protections, they may be able to bring a claim for a remedy, such as compensation or reinstatement, in a court or tribunal.

Section 340(1) of the Act provides that a person must not take adverse action against another person:

Because the other person:
Has a workplace right; or
Has, or has not, exercised a workplace right; or
Proposes, or proposes not to exercise a workplace right; or
To prevent the exercise of a workplace right by the other person.

A person will have a workplace right under section 341(1) if the person is:

Entitled to a benefit, or has a role or responsibility under a workplace law, instrument, or industrial body; or
Is able to initiate or participate in a process or proceedings under a workplace law or instrument; or
Is able to make a complaint or inquiry to a person or body to seek compliance with that workplace law or instrument, or if the person is an employee, in relation to their employment.

The Act provides examples of a process or proceedings under a workplace law or instrument, including (but not limited to) conferences conducted by the Fair Work Commission, court proceedings under workplace laws, protected industrial action, making, varying, or terminating an enterprise agreement, and agreeing to cash out paid annual leave or paid personal/carer’s leave.

A range of adverse actions can be taken by an employer against an employee, a prospective employer against a prospective employee, or a person who has entered (or intends to enter) into a contract for services with an independent contractor, including, but not limited to:

Unfair dismissal of an employee or terminating an employment contract,
Injuring the employee or independent contractor in their employment or conditions of the contract,
Altering the position of the employee or independent contractor to their prejudice,
Refusing to employ a prospective employee,
Discriminating between employees,
Discriminating against a prospective employee,
Refusing to employ a prospective employee, and
Refusing to make use of services offered by an independent contactor or refusing to supply goods or services to the independent contractor.

It will also be an adverse action if:

an employee or independent contractor ceases to work for or takes industrial action against an employer or principal, or

An industrial association imposes a penalty on a member.

In addition, the Act provides that a person must not organise or take any action against another person to coerce the person to exercise, not exercise, or propose to exercise a workplace right in a particular way. Sections 344 and 345 prevent a person from exerting undue influence or pressure on another in relation to a workplace right, or knowingly or recklessly making a false misrepresentation about a workplace right.

When will a General Protections dispute arise?

A general protections dispute can arise when an employer takes adverse action against an employee because they have exercised a workplace right or engaged in industrial activity. This could include actions such as termination, demotion, reduction in pay, or other negative treatment.

Under the Fair Work Act 2009, it is unlawful for employers to take adverse action against an employee because of their workplace rights or industrial activities. Workplace rights can include taking leave, making a complaint or inquiry, participating in an investigation or process related to work health and safety, and many other rights protected by law.

When a dispute arises, the court will consider whether the employee's exercise of their workplace right was a substantial and operative reason for the adverse action. This means that if the employee can show that their exercise of a workplace right was a significant factor in the employer's decision to take adverse action, the employer may be in breach of the general protections provisions of the Act.

It is important to note that a general protections dispute can also arise if an employer engages in coercion, misrepresentation, or undue influence or pressure in relation to an employee's exercise of their workplace rights or industrial activities. In such cases, the court will consider whether the employer's actions were unlawful and if they have caused the employee to suffer any loss or damage.

Who do General Protections cover?

The general protections provisions of the Fair Work Act 2009 provide protection to a broad range of individuals and entities. This includes current or prospective employees, employers, independent contractors, persons who have entered into a contract for services with an independent contractor, and industrial associations (including officers or members of such associations).

These individuals are protected from various types of actions taken by a constitutionally-covered entity, which includes a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory, or an organization. The general protections also cover actions that affect the activities, functions, relationships or business of a constitutionally-covered entity, or actions that consist of advising, encouraging or inciting, or action taken with intent to coerce a constitutionally-covered entity to take, or not take, action in relation to another person. Additionally, the general protections cover action taken in a Territory or Commonwealth place, and action taken by a trade and commerce or Territory employer that affects an employee.

Overall, the general protections provisions of the Act are designed to ensure that a wide range of individuals and entities are protected from unlawful workplace actions, regardless of their specific role or status.

Under sections 338 and 339 of the Act, the general protections protect individuals who are current or prospective:

Employees,
Employers,
Independent contractors,
Persons who have entered into a contract for services with an independent contractor, and
Industrial associations (including officers or members of such associations).

These persons are protected in respect of:

Action taken by a constitutionally-covered entity, that is, a constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory, or an organization;
Action that affects the activities, functions, relationships or business of a constitutionally-covered entity;
Action that consists of advising, encouraging or inciting, or action taken with intent to coerce a constitutionally constitutionally-covered entity to take, or not take, action in relation to another person’
Action taken in a Territory or Commonwealth place; and
Action taken by a trade and commerce or Territory employer than affects an employee

General Protections - Sham Arrangements

Section 357 of the Fair Work Act 2009 (Cth) provides protection to individuals against sham arrangements. A sham arrangement refers to a situation where an employer misrepresents employment as an independent contracting arrangement to avoid their obligations under the Act.

The section prohibits an employer from representing to an individual that a contract for employment is a contract for services that the individual performs as an independent contractor. This is to ensure that individuals receive the full protection of employment laws, such as entitlements to minimum wage, leave, and superannuation.

If the employer has made such a misrepresentation, the individual may bring a claim to seek the protection of the Act. However, the protection will not apply if the employer can prove that they did not know and were not reckless as to whether the contract was a contract of employment or a contract for services.

Moreover, employers are also prohibited from dismissing an employee for the purpose of engaging the person as an independent contractor to perform the same work. The section also prohibits employers from making false statements to persuade the employee to enter into a contract for services where the person will perform the same or substantially the same work.

Overall, these provisions seek to prevent employers from avoiding their employment obligations by disguising employment relationships as independent contracting arrangements, and to ensure that employees are protected under the Act regardless of the label placed on their relationship with the employer.

General Protections - Other Protections

In addition to workplace rights and industrial activities, the Fair Work Act provides employees with protections against discrimination, as well as a range of other protections.

Section 351 of the Act prohibits employers from taking adverse action against employees or prospective employees due to their race, color, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. However, this protection does not apply if the action is not unlawful under any anti-discrimination law, is due to the inherent requirements of the particular position, or is taken against an employee of an institution conducted in accordance with the doctrines or beliefs of a particular religion or creed, in good faith and to avoid injury to adherents of that religion or creed.

Sections 352-355 of the Act provide further protections. Section 352 prohibits employers from dismissing employees due to temporary absence because of illness or injury. Section 353 prohibits industrial associations from demanding payment of a bargaining service fee.

Section 354 prohibits a person from discriminating against an employer because employees are covered or not covered by provisions of the National Employment Standards, a workplace instrument, or enterprise agreement. Section 355 prohibits a person from taking action against another person with the intent to coerce the person to employ or not employ a particular person, engage or not engage a particular independent contractor, or allocate or not allocate duties or responsibilities to a particular person or independent contractor.

These provisions aim to protect employees and ensure they are not subjected to discrimination or adverse action in the workplace. Employers and other parties should be aware of their obligations under these provisions to avoid breaching the Act and facing legal consequences.

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enquiries@blackbaylawyers.com | (02) 9100 0889

Level 30, 133 Castlereagh St, Sydney, NSW 2000 Australia

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If you are looking for an experienced and expert legal team to assist with your General Protections case, trust us to provide you with the legal guidance and representation you need to achieve a positive outcome. Contact BlackBay Lawyers today to schedule a consultation.

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General Protections Lawyers

Areas of Expertise - Employment Litigation

Industrial Activities

Practice Area - Employment Law

General Protections

EMPLOYMENT LAWYER CONSULTATION

Practice Head - Litigation

Our litigation team combines decades of experience in the legal industry with countless successful outcomes. Together with our leadership, we have built one of the the best litigation law firms in Australia.

Victoria-Jane Otavski

Partner

General Protections Information

What is the Fair Work Act 2009 and what does it do?

Our expertise. Your call.

enquiries@blackbaylawyers.com | (02) 9100 0889

Level 30, 133 Castlereagh St, Sydney, NSW 2000 Australia

Make an enquiry

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CONSULTATION

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Your call.