Protections at work
Changes to casual employment – industrial relations reforms
On 26 March 2021, sections of the Fair Work Act relating to casual employees were amended.
We’ll have detailed information and guidance about the changes available for you soon. We’ll also be reviewing the information on this page.
For more information, see Changes to casual employment – industrial relations reforms.
All employees have protected rights at work. These protected rights include:
Employees can’t be treated differently or worse because they possess or have exercised a right, or for a discriminatory reason. Employees are protected from:
What rights are protected?
A person has a workplace right if they:
- have a benefit, role or responsibility under a workplace law (eg. The Fair Work Act 2009 or state/territory workers' compensation legislation), instrument (eg. an award or registered agreement) or an order made by an industrial body (eg. the Fair Work Commission)
- can start or take part in a process or proceeding under a workplace law or instrument
- can make a complaint or inquiry about their employment to a body
- are an employee and can make a complaint or inquiry about their employment. eg. an employee making an enquiry about their pay to their employer.
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A person has the right to belong or not belong to an industrial association (eg. a trade union or employer association). A person also has the right to take part or not take part in industrial activity.
Industrial activities include doing or not doing the following:
- being involved in establishing a union or employer association
- organising, promoting, encouraging or participating in lawful activities for a union or employer association
- representing the views, claims or interests of a union or employer association
- complying with lawful requests made by a union or employer association
- paying a fee to a union or employer association
- asking to be represented by a union or employer association.
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An employee or prospective employee has the right to be free from discrimination at work.
To find out more visit Protection from discrimination at work.
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What am I protected from?
Adverse action is action that’s unlawful if it’s taken for particular reasons.
Adverse action includes doing or threatening to do any of the following:
- firing an employee
- injuring the employee in their employment, eg. not giving an employee legal entitlements such as pay or leave
- changing an employee's job to their disadvantage
- discriminating between employees
- not hiring someone
- offering a potential employee different (and unfair) terms and conditions for the job, compared to other employees
- ending a contract, or refusing to enter into a contract with an independent contractor, discriminating against them in the terms and conditions offered, altering their position to their detriment, refusing to make use of their services, or refusing to supply goods or services to them
- an employee or independent contractor taking industrial action against their employer or principal.
It's unlawful for a person to take adverse action against another person for:
- having or using a workplace right
- belonging or not belonging to a union
- taking or not taking part in industrial activity
- having a protected attribute.
Example: Adverse action
Greg has lodged a request for assistance with the Fair Work Ombudsman because he doesn’t think he’s getting the correct pay. Once his employer finds out about the request for assistance, Greg is demoted and has his duties substantially changed. This is adverse action against Greg because he used his right to ask about his pay. It is unlawful.
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Coercion means forcing someone to do something against their will, for example, through fear, intimidation or threats.
A person can't be forced to use (or not use) a workplace right. For example, if an employee refuses to vote for an enterprise agreement, the employer can't:
- threaten to sack the employee
- threaten to demote the employee
- change their roster.
The coercive behaviour may still be unlawful even if it wasn't successful in forcing someone to do something against their will.
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Undue influence or pressure
Undue influence or pressure is when an employer uses their power to try to influence or pressure an employee to change their conditions of employment.
It's unlawful for an employer to place undue influence or pressure on an employee to:
- enter or not enter into an agreement under the National Employment Standards or an award or registered agreement
- agree to, or terminate an individual flexibility arrangement
- accept a guarantee of annual earnings or
- agree or not agree to a deduction.
The undue influence or pressure or coercive behaviour can be unlawful even if it doesn't succeed.
Example: Undue influence or pressure
David is covered by a registered agreement which allows for an agreement to be made to cash out annual leave.
David's manager Jenny approaches him about cashing out his annual leave.
Jenny says that because they are a small business, if David takes leave they would have to close temporarily to cover his absence. David feels obliged to agree with the manager's request.
Depending on the way Jenny raised the issue with David this might be considered undue influence or pressure. However, if the manager made it clear to David that he was in no way obliged to cash out his leave and that Jenny was just exploring all possible business options, her request is unlikely to be considered undue influence or pressure.
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Misrepresentation is when someone knowingly or recklessly makes a false or misleading representation to a person who would be expected to rely on that representation.
Kath is a long-term casual employee. She is pregnant with her first child and asks her manager about her parental leave entitlement. Kath's manager tells her that only full-time employees are entitled to parental leave - even though he knows that isn't true. This is a misrepresentation and is unlawful.
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Source reference: Fair Work Act 2009 s.334-378
Need help resolving general protections issues?
If you've lost your job, contact the Fair Work Commission (the Commission) first if you think you were sacked because of:
- a reason that is harsh, unjust or unreasonable
- another protected right.
You have 21 days starting from the day after you were dismissed to lodge an application with the Commission. Check the information at the Commission website to find out if you can apply for:
- unfair dismissal (not available if you lost your job because of a genuine Redundancy)
- a general protections dismissal
- unlawful termination.
For other general protections issues:
- consider whether the action taken against you was unlawful after reading the information on this page
- see our Fixing a workplace problem section for practical advice on:
- talking to your employer about fixing the problem
- getting help from us if you still can’t resolve it.
Take general protections issues seriously. Speak with your employee to address the problem after reading the information on this page.
We have resources to help you:
Boosting Apprenticeship Commencements wage subsidy
If an employee has agreed to start an apprenticeship or traineeship with an employer, it’s important the employee is aware of their general protections at work. These rules still apply for the Boosting Apprenticeship Commencements (BAC) wage subsidy, which provides employers with wage subsidies for new apprentices and trainees.
For example, the following rules continue to apply under the BAC wage subsidy:
- an employer can’t force or misrepresent to an employee that they need to start an apprenticeship or traineeship in order to stay employed
- an employer can’t adversely act against an employee (including terminating employment) if they refuse to start an apprenticeship or traineeship.
You can find more information on termination on our Unfair dismissal page.
For more information about the BAC wage subsidy, including eligibility and payment amounts, go to Boosting Apprenticeship Commencements
on the Department of Education, Skills and Employment website.
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