The concept of “General Protections” has created significant confusion amongst employers. Some are not even aware that they exist.
So what are they and what affect do they have on your business. Simply put, general protections are specified in the fair work act to protect the workplace rights of everybody who participates in the workforce. This includes employees, employers, independent contractors, unions and employer associations.
The legislation protects against all employees, employers and other members of the workforce from taking ‘adverse action’ against one and other. The notion of ‘adverse action’ is very important and needs to be understood to ensure parties don’t inadvertently breach another’s workplace rights. Adverse action is any conduct that disadvantages another person.
An example of an adverse action taken by an employer includes:

  • Threatening to terminate employment without due cause.
  • Not acting on bullying or discrimination
  • Injury at work
  • Unreasonably refusing to allow employees to take holidays
  • Discriminating against someone due to ill health.

An example of an adverse action taken by an employee includes:

  • Ceasing to work for their employer without due notice
  • Not working to specified requirement and standard
  • Industrial Actions
  • Discriminating against other employees.

Case Study

A recent example was a case where an employer had every right to conclude that their general protections had been breached by an employee who, they believed, had deliberately sabotaged a database. However, they had no proof. The employer advised the employee that they would investigate the matter to the fullest extent possible and in the same communication advised that they would issue a “second warning”.
Technically, the second warning without due cause was a breach of the employee's general protections and, as it was in writing, the employee had proof! If the employee had resigned at that point of their own accord, they could have strongly argued unfair dismissal as their general protections had been breached. Conversely, if the employer had taken the time to accumulate proof, then they could have summarily dismissed the employee for gross misconduct. Alternatively, as the employee was underperforming, the employer could have counselled the employee out using the performance management mechanisms.

So what to do – how do you protect your business?

The important element here is act fairly and reasonably by enacting appropriate policies and procedure which govern how different scenarios are addressed. A disciplinary procedure, when followed correctly can provide the necessary mechanisms to remove an employee breaching their terms of employment; a grievance policy can provide the necessary mechanism for an employee or employer to raise concerns about workplace rights being breached; whereas a performance management policy can also provide mechanisms to, not only help staff perform optimally, but also manage out those staff who are not performing in accordance with their job specification. See Performance Management.


 

Up until the 1st January 2011 a small business was defined as having less than 15 staff on a 'full-time equivalent' basis (FTE). As from the 1st January this definition of FTE has changed to a ‘head-count’ basis where casuals and part-time are now counted.

The following example explains the implication; if a company was previously classified as small business in that they had 13 FTE plus on part-timer working 1.5 day a week and 2 casual, i.e. FTE was 13. Now under the new definition this company will not be classified small business as their headcount is now 16, i.e. not 13+1 part-time + 2 Casual = 16.
Better check what your head-count is!


The Paid Parental Leave scheme came into operation on the 1st of January 2011. This means that anyone who became a parent of a children born or adopted on or after this date will be eligible. For a more detailed overview click http://workplacerelationsoz.blogspot.com/2010/09/paid-parental-leave-what-you-need-to.html"}">here.

It should be noted that even though the government funds the scheme, that as of the 1 July 2010 employers will be required to pay the employee via their normal payroll. An added complication is that Paid Parental Leave is not counted for purposes of Superannuation, payroll tax or workers’ compensation premiums so should be treated according.


Under the Fair Work Act (Section 89.2) if an employee takes any other leave during their annual leave, then the employee “is taken not to paid annual leave” during the period. In other words you will have to credit the employee their annual leave back to them and debit their Personal Carer’s leave.


This is a straight forward question, but one that has some very serious legal implications. Under Australian Law, if the business is found to have willfully or recklessly employed a worker who does not hold a valid work visa they may be subject to a $66,000 fine per illegal worker, 2 years imprisonment and/or $13,200 fine per incident for individuals. When the offence is considered to be aggravated, (i.e. when an illegal worker is being exploited through slavery, forced labour or sexual servitude) employers can be punished per illegal worker with a maximum penalty of 5 years imprisonment and/or fines up to $33 000 for individuals and $165 000 for companies.
Should your employment agency be referring an illegal worker to your business, then they are also subject to the same liabilities.

Who is an illegal worker?

Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. As an example, this would include workers who are holding 457 business visas but are not working for the visa sponsor.

How can I make sure a prospective employee is authorised to work?

Asking the prospective employee for proof of work entitlement is mandatory. Sight and photocopy the visa stamp in their passport. Even then you may not be able to work out their legal employment status. Accordingly, the Australian Department of Immigration provides an online Visa Entitlement Verification Service which allows employers to easily check the entitlements of non-citizen. You may also call 1800 505 550.

How do I validate an Australian Citizen?

Naturally, all Australian Citizens are entitled to work in Australia. But it is important that you don’t simply take their word for it. You will need to validate that whoever you’re employing is an Australian Citizen by asking to sight either:

  • An Australian passport
  • An Australian citizen Certificate
  • A certificates of evidence of citizenship, or
  • An Australian birth certificate.

Don’t feel uncomfortable asking for this information as it is your responsibility under law to do so. Not doing so is may be deemed as ‘reckless’ which again leaves you liable to criminal prosecution.

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