Many employers are now familiar with the Fair Work Act 2009 (Cth) (the Act). Despite this, recently there has been an increase in applicants bringing claims under the “General Protections” regime contained in Part 3-1 of the Act.
Part 3-1 of the Act provides protection of a person’s workplace rights.
Employers or managers can find themselves in contravention of Part 3-1 if they engage in conduct that amounts to “adverse action” being taken against an employee.
Adverse action can include:
- The dismissal of an employee
- Discriminating between employees
- Altering the position of an employee to their disadvantage
- Or injuring an employee in their employment
These claims can be brought against the employer but also against the employer’s owners and even against managers and supervisors directly.
Managers and supervisors are often unaware of the if general protections set out in Part 3-1 and are greatly surprised when they become joined in the matter.
The first question they ask is how could they be joined to a matter if they are not the employer?
The answer is found in s.550(2) of the Act, which states that an individual person is involved in (and can be liable for) a contravention committed by another party where that person has:
- Aided, abetted or counselled the contravention; or
- Induced the contravention, whether by threats or promises or otherwise; or
- Been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
- Conspired with others to effect the contravention
As these matters they rarely proceed all the way to a hearing, the main motivation behind an aggrieved ex-employee joining their manager to a claim under Part 3-1 of the Act is to aide in the negotiation of a settlement.
Even though there is often no final hearing of the matter and thus no penalties handed down these matters can cost the parties much time, money and effort to defend.
The best approach is to keep all management staff updated as to what workplace rights employees currently have. If this can be achieved it will result in far fewer claims under Part 3-1 of the Act arising.