General Workplace Protections Chapter 3 – Fair Work Act October 2009

Chapter 3 Incorporates and streamlines parts of the WR Act dealing with a range of matters including: -unlawful termination -freedom of association -discrimination -sham arrangements dealing with independent contractors -other protections In some respects it extends the protections which previously existed under the WR Act

Chapter 3 Introduces some new concepts: Workplace rights Engaging in industrial activities Adverse action

Chapter 3 My focus today Protection of workplace rights Protection of freedom of association/industrial activity Protection against workplace discrimination Relief for breaches

Workplace Rights Section 340 A person must not take adverse action against another person because they: –have a workplace right; –has, or has not, exercised a workplace right; –proposes to, or not to, exercise a workplace right Or to prevent a person from exercising a workplace right

Some important concepts Workplace rights – what are they? Adverse Action – what is that?

Workplace Rights A person has a workplace right if: -benefit of, or role or responsibility under, a workplace law, workplace instrument or order made by an industrial body -is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument -is able to make a complaint or inquiry: -to an external person or body with the power to make a binding order -if a person is an employee, in relation to his or her employment

Workplace Rights (cont’d) -‘process or proceedings under a workplace law or workplace instrument’ is further defined in s341(2) -the protection of workplace rights extends to prospective employees (subject to 2 exceptions) NOTE: impact of this on an employer’s right to make an offer of employment conditional on an employee entering into an individual flexibility arrangement.

Adverse Action -Defined in section 342 -Different definition for different categories of persons -employees -prospective employees -independent contractor -prospective independent contractor

Adverse Action (Cont’d) In the employment context, for example, adverse action includes: - dismissing an employee/ not employing a prospective employee -injuring the employee/ altering his or her position to his/her prejudice -discriminating between the employee and other employees of the employer -discriminating against a prospective employee in the terms and conditions of employment offered

Other provisions Prohibition against Coercion Undue influence or pressure Misrepresentations Civil remedy provisions

Industrial Activities Section 346 – a person must not take adverse action against another because: membership of an industrial association; engagement in industrial activity;

Some important concepts Industrial Activity What does it mean? Membership action What is it?

Discrimination Section 351 an employer must not take adverse action against an employee or prospective employee because of the person’s: RaceColour SexSexual preference AgePhysical or mental disability Marital statusFamily or carer’s responsibilities PregnancyPolitical opinion ReligionNational extraction or social origin

Discrimination -Expanded rights as compared to WR Act -Under WR Act – there was a prohibition against the termination of an employee’s employment for a prohibited reason -Now – the prohibition is against any adverse action which includes action taken during an employee’s employment

Discrimination cont’d Section 351(1) does not apply to: action that is not unlawful under local anti-discrimination legislation inherent requirements defence action taken in accordance with a religion or creed if taken in good faith and to avoid injury to the religious susceptibilities of adherent to that religion or creed

Other provisions Prohibition against termination for ‘temporary absence due to illness or injury’ Prohibition on an industrial association demanding bargaining services fee Coverage by particular instruments Coercion Objectionable terms in workplace instruments

What happens if there is a breach? Civil Remedy Provisions -A civil remedy may be sought in the -Federal Court -Federal Magistrates Court -Maximum penalty is 60 penalty units (ie $6,600)

Questions

Patrizia Mercuri Partner Workplace Relations & Safety Group Sydney Office Level 5 Angel Place 123 Pitt Street Sydney NSW 2000 Telephone (612) Facsimile (612) Melbourne Office Level 12 Bourke Place 600 Bourke Street Melbourne VIC 3000 Telephone (613) Facsimile (613)