General protections
Context
Under the Fair Work Act, employees cannot be dismissed or subjected to other detrimental conduct because they have certain rights, entitlements or attributes.
Position
VACC members are very concerned about the general protections provisions. These provisions are broad and subjective, creating great uncertainty for employers. They encourage vague, vexatious and ill-advised claims.
Employers are also burdened with a reverse onus of proof in defending adverse action claims. This makes any defense extremely difficult, particularly for small businesses that are less likely to maintain sufficient records.
It has been the experience of VACC organisations, with the exception of MTA South Australia, that some Fair Work Commission (FWC) conciliators use the reverse onus of proof requirement to persuade employers to settle matters by paying ‘go away money’ in conciliation conferences.
The adverse action claim should be removed from the Act and the previous unlawful termination provisions returned. The onus of proof should be changed to the applicant in unlawful termination cases.
Further, the general protections provisions are an unnecessary layer of regulation and provide yet another avenue for an employee to make a complaint, should another claim be unsuccessful. Employers are entitled to a level of certainty when a claim is dismissed.
Finally, it is unnecessary to have separate discrimination provisions in the general protections provisions. There is more than adequate protection against discrimination in employment in State and Federal anti‐discrimination legislation. It is not necessary to provide this opportunity for forum shopping.
Recommendations
- General protections provisions should be removed and replaced with the former unlawful termination provisions. Further, the ability to make discrimination claims should be removed from the Act
- Alternatively, consideration should be given to ways of preventing politically motivated or non-meritorious claims progressing.
18 June 2015