Protections at work
The Fair Work Act gives all employees protected rights, called ‘general protections’, at work.
These protected rights include:
- workplace rights
- taking or not taking part in industrial activities or belonging or not belonging to an industrial association
- being free from discrimination.
On this page:
A person has a workplace right if they:
- have a benefit, role or responsibility under a:
- workplace law (for example, the Fair Work Act 2009 (Fair Work Act), Sex Discrimination Act 1984, or state and territory work health and safety laws or workers' compensation laws)
- workplace instrument (for example, an award or registered agreement), or
- workplace order made by an industrial body (for example, the Fair Work Commission)
- can start or take part in a process or proceeding under a workplace law or instrument (for example, a dispute settlement procedure under a registered agreement)
- can make a complaint or enquiry to a person or body to seek compliance with a workplace law or instrument (for example, the Australian Human Rights Commission)
- are an employee making a complaint or enquiry about their employment (for example, an employee asking their employer about their pay rate).
A person has the right to belong or not belong to an industrial association (for example, a trade union or employer association). A person also has the right to take part or not take part in industrial activity. It’s unlawful for a person to take adverse action against another person for these kinds of reasons.
Industrial activities include doing or not doing the following:
- being involved in setting up a union or employer association
- organising or promoting lawful activities for or on behalf of a union or employer association
- encouraging or participating in lawful activities organised or promoted by a union or employer association
- representing the views, claims or interests of a union or employer association
- following lawful requests made by a union or employer association
- paying a fee to a union or employer association
- asking a union or employer association to represent you.
Employees and prospective employees have the right to be free from discrimination based on protected attributes.
To find out more, visit Protection from discrimination at work.
Adverse action is unlawful if it’s taken for a prohibited reason or reasons.
Adverse action includes doing, threatening or organising to do any of the following:
- firing an employee
- injuring an employee in their employment (for example, not giving an employee their legal entitlements, such as pay or leave)
- changing an employee's job to their disadvantage
- treating an employee differently than other employees (for example, treating someone differently based on their sex or gender)
- not hiring someone
- offering a potential employee different terms and conditions for the job, compared to other employees
- ending or refusing to enter into a contract with an independent contractor
- discriminating against an independent contractor in the terms and conditions offered to them
- altering an independent contractor's position to their detriment
- refusing to make use of an independent contractor's services
- refusing to supply goods or services to an independent contractor
- an employee or independent contractor taking unlawful industrial action against their employer or principal contractor.
It's unlawful for a person to take adverse action against another person because they:
- have a workplace right
- have or have not used a workplace right
- propose or don't propose to use a workplace right
- belong or don't belong to a union
- do or don't take part in industrial activity
- have a protected attribute.
It's also unlawful for a person to take adverse action against another person:
- to prevent the other person using a workplace right, or
- because a third person has used or proposes to use a workplace right for the second person’s benefit or a group of people that the second person is part of.
Example: Adverse action
Greg’s employer finds out that he reported a workplace issue to the Fair Work Ombudsman because he didn’t think he was getting paid the minimum wage. Greg is demoted and has his duties substantially changed because he contacted the Fair Work Ombudsman. This is adverse action against Greg because he used his right to ask about his pay. It is unlawful.
Coercion is the act of organising or taking, or threatening to organise or take, action against another person or third party with an intent to influence them to act in a particular way. This can include forcing someone to do something against their will through fear, intimidation or threats. Coercion interferes with a person’s freedom of choice.
A person can't be forced to:
- use (or not use) a workplace right
- propose to use (or not use) a workplace right
- use or propose to use a workplace right in a particular way. For example, if an employee refuses to vote for an enterprise agreement, the employer can't try to make them vote for the agreement by:
- threatening to fire the employee
- organising to demote the employee
- changing their roster to their detriment.
The coercive behaviour may still be unlawful even if it wasn't successful in forcing someone to do something against their will.
Undue influence or pressure is when an employer tries to inappropriately 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 or arrangement 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
- agree or not agree to a deduction from their pay.
The undue influence, pressure or coercive behaviour can be unlawful even if it doesn't succeed.
Example: Undue influence or pressure
David’s registered agreement allows for him to make an agreement about cashing out some of his annual leave.
David's manager, Jenny, approaches him about cashing out his annual leave.
Jenny says that if David takes leave they’ll need to close temporarily. She says that they are a small business and they can’t cover his absence. David feels obliged to agree with Jenny’s request to cash out his annual leave.
Depending on how Jenny raised the issue with David, this might be considered undue influence or pressure. However, if Jenny made it clear that David didn’t have to cash out his leave and that she was just exploring all possible business options, her request is unlikely to be considered undue influence or pressure.
Misrepresentation is when someone knowingly or recklessly makes a false or misleading representation about workplace rights, or the exercise or effect of exercising a workplace right to a person who would likely rely on that representation. It’s against the law.
Kath is a part-time employee who has been employed for 2 years with her employer. She is pregnant with her first child and asks her manager about her parental leave entitlements. 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.
Source reference: Fair Work Act 2009 s.334-378