How do they apply to my case?
Isn’t that just the same as an unfair dismissal?
These are some of the questions we are often asked by clients about a general protections claim (GPA). A GPA is an important and powerful part of the framework for employee rights in Australia. So let’s demystify it!
What are they?
The general protections regime found in the Fair Work Act 2009 (Cth) are intended to
- Protect workplace rights;
- Protect the freedom of association;
- Provide protections from workplace discrimination; and
- Provide relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.
There are two types of GPAs – dismissal disputes and non-dismissal disputes.
Workplace Right
A person (usually an employer) must not take any adverse action against another person (an employee), because that person has a workplace right, has exercised a workplace right, proposed to exercise that workplace right.
Adverse action includes:
- Dismissal;
- Injuring an employee in the course of their employment (including psychological injury);
- Altering the position of the employee to their prejudice; or
- Discriminating between an employee and other employees of the employer.
A workplace right will include:
- receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission);
- commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action; and
- being able to make a complaint or inquiry about your employment.
Industrial Activities
A person (usually an employer) must not take adverse action against another person because they are engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union. This includes refusing to participate in an industrial action.
Discrimination
An employer must not take adverse action against an employee because of an attribute of that person including their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
All of the general protections prohibitions are civil remedy provisions. These means that if found to be breached by a Court, the Court can order penalties against the offender.
Who do they protect?
General protections laws can apply to:
- Employees and prospective employees
- Employers and prospective employers
- Independent contractors
- A person who has entered into or who has proposed to enter into a contract for services with an independent contractor
- An industrial association, including an officer or member of an industrial association.
Unlike an unfair dismissal claim, there is no high income threshold and no minimum period of service required for a general protections claim.
How do I make a claim?
Once you have identified you have a GPA claim, if it involved dismissal it must be lodged within 21 days of the date the termination was effective.
If the dispute does not involve dismissal, you should make your claim as soon after the adverse action was taken as possible.
The claim will then proceed to a conciliation or conference before the Commission. If it cannot be settled at this point, the claim can proceed to the jurisdiction of the Federal Court.
What compensation can I receive?
Should the GPA proceed past conciliation of conference, damages can be awarded for economic loss. Compensation is uncapped in the federal jurisdiction and can be awarded for hurt, distress and humiliation. Civil penalties will also apply to the breach of legislation.
Summary
The most important part of a GPA claim is the why – why was the adverse action taken? The use of the word ‘because’ in the legislation makes it the central question in a GPA dispute. Once it has been established that the adverse action was taken, a connection then needs to be made with the workplace right, industrial activity or prescribed attribute.
Unless the adverse action was taken because of a proscribed reason, then there will be no breach of the general protections provisions. This is a question of fact.
If you believe you are eligible to commence a GPA, or would like to discuss it further, please contact us.
Want to learn more? Contact us today.
