The principal statutory guarantees of fair treatment in the workplace are set out in Pt 3-1 of the Fair Work Act 2009 (FW Act).

These are wide-ranging provisions which provide employees and other persons with a high level of protection against unfair treatment, and which by the same token create significant exposures for employers and other persons who wilfully or inadvertently treat employees and other persons in an unfair manner.

The core requirements of Pt 3-1 are set out in ss 340 and 346 .

See Introduction to the general protections.

Both ss 340 and 346 proscribe the taking of ‘adverse action’ because of a person’s workplace rights or industrial activities.

The kinds of conduct that will constitute adverse action for this purpose are set out in a table in s 342(1) of the FW Act. For example, in the case of an employer against an employee it can include dismissal, injuring an employee in their employment, altering the position of an employee to their prejudice, or discriminating against an employee relative to other employees of the employer.

The table also makes clear that adverse action can be taken by employers against prospective employees; principals against independent contractors or potential contractors; employees against employers; independent contractors against principals; and industrial associations and officers or members thereof against the range of persons listed in item 7 of the table.

See Adverse action.

Section 340 provides wide-ranging protection against adverse action for persons who exercise, or have the capacity to exercise, “workplace rights”.

“Workplace rights” for these purposes include the fact that a person:

• is entitled to the benefit of, or has a 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 proceeding under a workplace law or workplace instrument;

• is able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument; and

• being an employee, is able to make a complaint or inquiry in relation to their employment.

“Workplace laws” include a number of instruments and provisions, including the FW Act itself, the Independent Contractors Act 2006 and any Commonwealth, state or territory law that regulates relationships between employers and employees. A “process or proceeding” under such a law will include participating in proceedings before the Fair Work Commission (FWC) or any other court or tribunal, and also activities such as taking protected industrial action and making or varying an enterprise agreement.

Of particular significance in the context of s 340 is the fact that the concept of workplace right appears to extend to a wide range of complaints or inquiries that an employee may make to another person, including their employer, in relation to their employment. This could include various types of conduct, from making a complaint to the Fair Work Ombudsman about underpayment of wages, to an employee asking their employer to verify their annual leave entitlements.

See General Protections — Workplace rights.

The protections against adverse action on grounds of industrial activities are set out in ss 346 and 347.

Of note, they accord equal protection to not being a member or official of a union as to being such a member or official. They also provide protection against adverse action on the grounds of engaging or refusal to engage in certain forms of activity, such as organising or promoting unlawful activity for or on behalf of a trade union or participation in (protected or unprotected) industrial action.

See General protections — Industrial activities.

The core protections against adverse action on the basis of workplace rights and industrial activities are complemented by provisions directed against certain other forms of industrial misbehaviour. These include coercion (ss 343 , 348 and 355 ); misrepresentation (ss 345 and 349 ); inducements in relation to membership or non-membership of industrial associations (s 350 ); discrimination on a range of arbitrary grounds (s351 ); seeking the payment of bargaining fees (s 353 ); and discrimination in relation to the coverage of industrial instruments (s 354 ).

See General protections — Other provisions (coercion/misrepresentation, etc).

The FW Act also contains protections against sham contracting which refers to the misrepresentation of an employment relationship as an independent contracting arrangement.

See Sham contracting.

Breaches of the general protections set out in Pt 3-1 are ‘civil penalty provisions’. This means that persons who contravene those provisions are liable to the imposition of monetary penalties of up to $63,000 per breach in the case of bodies corporate, and $12,600 for other persons.

In addition to the imposition of monetary penalties, the Federal Court or the Federal Circuit Court can make any order they consider appropriate where they are satisfied that a person has contravened or proposes to contravene Pt 3-1 . Such orders can include compensation (with no upper limit); injunctions (interim and permanent); orders of reinstatement; and declarations.

Court costs are not normally available in Pt 3-1 cases, except where the court is satisfied that a party initiated proceedings ‘vexatiously or without reasonable cause’, or in other circumstances that are set out in s 570 of the FW Act.

See General protections claims — Remedies .

The FW Act establishes separate processes for dealing with alleged contraventions of Pt 3-1 that involve the dismissal of an employee and those that do not.

For general protection dismissal claims, the person concerned (or union that is entitled to represent their industrial interests) must make an application to the Fair Work Commission (FWC) to deal with the dispute: s 365 . The time limit for making this type of application is 21 days from the dismissal (extendible in exceptional circumstances).

After providing the respondent with an opportunity to respond, the FWC will try to resolve the dispute by conciliation or mediation but it cannot impose an outcome on the parties.

If the FWC is unable to resolve the dispute, then it must issue a certificate to that effect, and the applicant can initiate proceedings in either the Federal Court or the Federal Circuit Court and seek relief as outlined above. Alternatively, the parties may agree for the FWC to arbitrate the dispute: s 369. An arbitrated decision of the FWC is legally binding and may be enforced through the courts.

It is not obligatory to ask the FWC to deal with alleged contraventions that do not involve dismissals, although it is possible to ask it to do so. Where an applicant requests the assistance of the FWC in such cases then it can attempt to resolve the matter in conference provided that all parties agree to its doing so. If the matter is not resolved than the applicant can seek relief in an appropriate court in the same way as in dismissal cases (although arbitration is not an option). Where the applicant chooses not to refer a dispute to the FWC, they can apply directly to the Federal Court or the Federal Circuit Court.

In all cases (apart from applications for interim injunctions) where it is alleged that a person took action for a prohibited reason in contravention of Pt 3-1 , a reverse onus of proof applies. That is, the person is presumed to have taken action for the prohibited reason unless the person proves otherwise: s 361.

This reversal of the normal rules as to onus of proof is extremely important, and many employers who run foul of the general protections do so because they are unable to discharge the reverse onus.

See General protections claims — Procedure.