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Comprehensive Guide on General Protections Provisions in the Fair Work Act 2009

Understanding the basic tenets of the Fair Work Act 2009, particularly the general protections provisions, is crucial for a harmonious and lawful work environment. These provisions are established to safeguard:

  • Employees’ workplace rights
  • Workers against discrimination in the workplace
  • Freedom of association
  • Absence from work due to temporary illness or injury

Deciphering Adverse Action

Adverse action is an important concept under the Fair Work Act 2009. An employer is deemed to take adverse action against an employee if the employer:

  • Terminates the employee
  • Causes injury to the employee in their work
  • Negatively alters the employee’s position
  • Discriminates among the employee and other staff

Understanding Workplace Right

The Act prohibits ‘adverse action’ against an employee if the employee:

  • Holds a workplace right
  • Has, or hasn’t, exercised a workplace right
  • Suggests to, or refrains from, exercising a workplace right

Workplace right is present when an employee:

  • Is entitled to the benefit of, or possesses a role or responsibility under, a workplace law, workplace instrument, or order by an industrial body
  • Has the capacity to initiate, or participate in, a process or proceedings under a workplace law or instrument
  • Can make a complaint or inquiry to a person or body that has the ability under a workplace law to ensure compliance with that law or a workplace instrument, or in relation to his or her employment

Under the general protections provisions relating to workplace rights, it is illegal to terminate an employee’s employment (or inflict other forms of adverse action against them) under various circumstances, including:

  • When the employee lodges a complaint connected to their employment
  • If the employee requests information about their employment
  • When the employee initiates a workers compensation claim or has the right to do so
  • If the employee identifies unsafe working conditions or has an obligation under safety law
  • When the employee has faced bullying and has the right to report to the Fair Work Commission
  • If the employee exercises their rights under law, such as availing sick leave, annual leave, long service leave, refusing to work on public holidays, or denying to work unreasonable overtime

Addressing Workplace Discrimination

Businesses are prohibited from taking adverse action (which includes termination) against employees based on their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, nationality or social origin, with a few limited exceptions.

Protecting Temporary Absence from Work

The general protections provisions safeguard employees against dismissal due to temporary absence from work as a result of illness or injury.

The Importance of Union Membership

Taking adverse action against an employee based on their union membership status or their decision to not join a union is considered illegal.

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